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Right to vote vital democracy: SC

Accepts nomination papers of PTI candidate Tahir Sadiq Join Us

Our Correspondnet January 31, 2024     

Under the ordinance, the federal government will establish a three-member Privatisation Appellate Tribunal. Any person aggrieved by the
decision of the tribunal may file an appeal before the Supreme Court. photo: file

ISLAMABAD: The Supreme Court while accepting the nomination

papers of PTI candidate Tahir Sadiq noted that the right to form or
be a member of a political party under Article 17(2) of the
Constitution includes not only right to contest elections but also the
right to vote for the candidate of one’s choice.

"When viewed against the backdrop of the constitutional value of ‘political

justice’, Article 17(2) remains hollow unless it also recognizes the right of
citizens to choose their representatives fairly and freely from amongst the
candidates. The right of citizens to participate in national elections as voters is
the core of the democratic form of government," a judgment authored by
Justice Syed Mansoor Ali Shah said.

"This right is also an expression of the choice of the citizens, which finds
further support under Article 19 of the Constitution. In exercise of these
fundamental rights, citizens shape their destiny by forming the government
they want," it added.

A three-judge bench led by Justice Shah heard a case related to elections.

The judgement noted that elections stand as a manifestation of the collective

will of a nation, reflecting the diverse voices and choices of its citizens.

"In this democratic process, individuals exercise their right to vote,

contributing to the formation of a representative government. The rights
involved are not only of those participating in the elections but also of the
public. The courts, in their role as guardians of democracy and fundamental
rights, should approach electoral matters with circumspection, ensuring that
their interventions uphold the democratic principles upon which the nation
thrives and the fundamental rights of citizens to contest elections and vote for

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1/31/24, 10:20 AM Right to vote vital democracy: SC

the candidates of their choice. ‘The right to vote freely for the candidate of
one’s choice is the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government’," the judgment said.

"The working of democracy depends on whether the people can decide the fate
of the elected form of government. It depends on the choices that people make
in different ways," it added.

"This choice of people cannot be compromised, as their mandate in elections

changes the destinies of government. Through the electoral process and
voting, citizens participate in democracy. By voting, citizens take part in the
public affairs of the country. Thus, citizens by voting enjoy their right to
choose the composition of their government by exercising their choice and
ability to participate."

The judgment noted that the qualification and disqualification of a candidate

become crucial, as it involves both the right of candidates to contest the
election and the right of voters to choose their preferred candidate.

"The aim of prescribing qualifications and disqualifications for candidacies to

contest elections is to maintain the integrity and effectiveness of the political
process. They are designed to ensure that
individuals holding public office meet certain standards. In a well-functioning
democracy, the criteria for qualifications and disqualifications are clearly
defined, publicly known and uniformly
applied," the judgment read.

Read: Proclaimed offender eligible to participate in polls: SC

"Qualifications and disqualifications of a candidate for the electoral process

must therefore be clearly spelled out in the Constitution or the law. Otherwise,
electoral laws must be interpreted in favour of enfranchisement rather than
disenfranchisement so that maximum choice remains with the voters to elect
their future leadership," it added.

"With this approach rooted in the high constitutional rights and values, the
courts are to deal with the matters of acceptance or rejection of the
nomination papers filed for contesting elections.

"Since the petitioner’s nomination paper has been rejected on the ground of
his being a proclaimed offender, we in the course of the hearing asked the
learned counsel for the ECP to show the order made
and the proclamation issued against the petitioner under Section 87 of the
Code of Criminal Procedure 1898 (“Cr.P.C.”) but he was unable to refer to any
such order and proclamation. We then called upon the
objector, who was present in court, to tell us the source of his objection. He
frankly submitted that some of his friends had mentioned it to him, but he has
no document to establish that the petitioner is a proclaimed offender. Hence,
there is nothing on the record that the petitioner is a proclaimed offender."

The judgment noted that it was needless to say that in the absence of
proceedings taken under Section 87, CrPC, an accused cannot be said or
treated to be a proclaimed offender.

"Further, as the rule of declining discretionary reliefs to a proclaimed offender

is one of propriety when the same is confronted with a right, it is the right, not
the rule of propriety, that prevails. It is also important to note that the
disadvantage, if any, for being a proclaimed offender ordinarily relates only to
the case in which a person has been so proclaimed, and not to the other cases
or matters which have no nexus to that case," the judgment said.

"For instance, a proclaimed offender is not disentitled to institute or defend a

civil suit, or an appeal arising therefrom, regarding his civil rights and
obligations. The same is the position with the civil right of a person to contest

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1/31/24, 10:20 AM Right to vote vital democracy: SC

an election; in the absence of any contrary provision in the Constitution or the

Elections Act 2017 (“Act”), his status of being a proclaimed offender in a
criminal case does not affect his said right," it added.

"Articles 62 and 63 of the Constitution read with Sections 231 and 232 of the
Act provide for qualification and disqualification of a candidate, which does
not mention that a “proclaimed offender” is
disqualified from being elected or from being a member of Parliament.

The grounds provided for rejection of a nomination paper in Section 62(9) of

the Act also do not empower the Returning Officers to reject the nomination
paper of a candidate on the ground of his being a proclaimed offender."

The judgment maintained that although no provision of the Act had been
pointed out to the court that required necessary presence of the candidate
during the electoral process, the court may observe that if there is any such
provision, the absence of the candidate may have its own consequences under
that provision, but his nomination paper cannot be rejected on such ground
unless the legislature so provides in Section 62(9) of the Act.

"Therefore, the High Court is found to have made a legal error in rejecting the
petitioner's nomination paper on the ground of his being allegedly a
proclaimed offender," the judgment said.

"Orders of the High Court are set aside and the nomination paper of the
petitioner for the seat of a Member of the National Assembly from NA-49,
Attock-I, stands accepted. The ECP shall ensure that all the necessary steps to
be taken in the electoral process are completed forthwith so that the petitioner
can contest the election on the scheduled date for the said seat, without fail."

 

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