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SC suspends the nullification of nomination forms by LHC: Tough time ahead for Pakistani democracy?

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The Supreme Court of Pakistan (SC) has suspended the decision of the Lahore High Court (LHC) regarding the revision of electoral nomination forms on 3rd June, 2018.  A two-member bench of the SC suspended the decision given by Justice Ayesha A. Malik of the LHC.

The Chief Justice of Pakistan (CJP) Mian Saqib Nisar who was heading the bench observed that any change in the nomination forms at this stage ‘would cause in cause a delay in the election process’. He suspended the decision of the LHC and directed the Election Commission of Pakistan (ECP) to ensure the general election in time and said that “the ECP will be personally responsible if they are postponed”.

The experts believe that a democracy without a democratic spirit may not function well and deliver up to the mark.

Justice Ayesha A. Malik had ruled on the 2nd June 2018 that required information to ensure an ‘informed decision’ by the public on the day of elections was not provided in the forms A and B. She ordered the ECP to ensure this information is included in the revised Form A ─ for election to the National Assembly (NA) or Senate ─ and Form B ─ a statement of assets and liabilities.

“Basic Information was missing”

The court in its judgment noted that the ‘Impugned Forms’ did not contain the following information and declarations that were a part of the 2013 nomination forms:

  • Educational qualifications of the candidate
  • Current occupation/job/profession/business of the candidate
  • Dual nationality, if any
  • National Tax Number/Income tax returns/ and payment of income tax
  • Agriculture tax returns and payment of agriculture tax
  • Criminal record, if any
  • Assets and liabilities of dependents
  • Declaration pertaining to election expenses
  • Declaration pertaining to any default in loan or government dues by dependents
  • A declaration that the candidate will abide by the code of conduct issued by ECP

After the decision of the LHC, the ECP held an emergency meeting to review the forms under the light of the court’ order.

Read more: Lahore High Court orders to make Model Town inquiry report public…

Meanwhile, the Caretaker Prime Minister Justice (r) Nasirul Mulk had directed the Attorney General Office in the Law Ministry on Saturday to file an appeal against the LHC decision

Political commentators’ reaction:

The decision of the court has been viewed critically by the politicians, political commentators and civil society members in Pakistan. PTI’s senior leader had twitted earlier and said that “The old nomination forms should be restored and the Supreme Court should take a clear-cut decision in this regard on Monday so that there is no delay in elections. We cannot have forms which give the public an impression that politicians misdeeds are being allowed to be hidden”.

The PTI wanted and expected both the maintainability of the LHC decision and elections in time.

Dr. Moeed Pirzada, a senior analyst, made several comments on the decision and declared the 3rd June as ‘Sad Day’ for democracy in Pakistan.  Dr Pirzada said that the “[d]isclosure Declarations” that have been struck down by Supreme Court, on demand of powerful politicians, are an essential innovative tool of western law that provides for convictions if “false declaration” discovered later. Law has to act basically as a “Deterrent” – Sad Day!”

 

He feared that if there is no constitutional demand for the declaration of assets by the candidates it will damage the democracy in Pakistan. “Once you get rid of the “Declaration” by electoral candidates, it becomes almost impossible (practically speaking) to challenge their credentials later. Basically, democracy means “Elite/Criminal/BigMoneyControl” on state & people in Pakistan & legal professionals are “Midwives”,” Dr. Pirzada observed.

A rights activist Muhammad Jibran Nasir also expressed his displeasure over the SC decision on Twitter. “This is a travesty of Justice by the CJP. He himself set precedent by disqualifying a sitting PM over dishonesty and how has paved way for all sorts of criminals and corrupt to enter Parliament. Is this what the voters deserve?,” said Jibran Nasir.

He was referring to the decision of former Prime Minister Nawaz Sharif’s disqualification over non-declaration of assets in the nomination forms in the elections 2013.

He suspended the decision of the LHC and directed the Election Commission of Pakistan (ECP) to ensure the general election in time and said that “the ECP will be personally responsible if they are postponed”.

 

It is pertinent to mention here that Chaudhary Umer Hayat, Director Legal, Election Commission of Pakistan who appeared before the LHC to represent the ECP had said the Parliamentary Committee on Electoral Reforms did not address their reservations. He also mentioned that “the ECP voiced its opinion and complained through a letter dated 18.5.2017 wherein it is requested that the ECP, in the very least, be heard by the Parliamentary Committee for Electoral Reforms before any draft is prepared.

However, this request was not adhered to. Similarly, Justice Ayesha Malik marinated that it was the responsibility of the ECP to ensure all arrangements for a ‘free, fair and honest’ elections.

Read more: Lahore High Court orders Punjab Govt: Release Justice Najfi report on…

Chaudhary Umer Hayat has also ‘clarified that the ECP can rectify the disclosure requirements within one week if required’.  Justice Ayesha, therefore, ordered that “the Impugned Forms do not provide for mandatory information and declarations as required by the Constitution and the law and the ECP is directed to ensure that all mandatory information and declarations are included in the Impugned Forms”.

The SC has rested its decision on some legal technicalities. But the most important point is that since the court did not want to cause a delay in the general elections, it suspended the decision to improve the forms. The experts believe that a democracy without a democratic spirit may not function well and deliver up to the mark. It is generally argued that democratic process is key to ensure a smooth democratic order in any society.

The information which is missing in nomination forms was key to determine the credibility of politicians.  The candidates are now even not bound to declare or mention whether they are or were involved in any criminal activity.  This is a big question mark on the face of Pakistani democracy.

Moreover, the questions with regard to the application of the articles 62 and 63 of the constitution after the suspension of the LHC order have become contestable since the candidates are not supposed to offer required information to scrutinize them.


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