SCOPE OF THE QUESTIONS TO BE ASKED BY THE RETURNING OFFICERS AND THE LIVE TELECAST OF THE PROCEEDINGS ON ELECTRONIC MEDIA.
SYED MANSOOR ALI SHAH, J.---Learned Standing Counsel along with representatives of the Election Commission of Pakistan ("ECP") and Punjab Election Commission of Pakistan ("PECP") submitted that no directive has been issued by the ECP under Article 218 of the Constitution regulating the mode and manner of scrutiny to be conducted by the Returning Officers ("ROs) under Section 14 of the Representation of People Act, 1976 ("ROPA").
2. Deputy Director (PECP), Lahore further submits that no directive has been issued by ECP to the ROs permitting them to ask a barrage of random questions from candidates, on their own motion, in order to subjectively assess the requirements of Article 62 (1) (e), (f) and (g) of the Constitution, without the said question arising from the documents (nomination papers and objections filed, if any) placed before the ROs.
3. It is pointed out, with grave concern, that the ROs are asking unrelated and unwanted questions from candidates, in front of live television, during the scrutiny of the nomination papers, which is generating a negative perception in the public against the judiciary and its core function as a neutral arbiter.
4. The learned counsel appearing in this case unanimously pointed out that candidates are being intrusively examined by the ROs relating to their personal life and the questions posed have no co- relation or nexus with the information submitted in the nomination papers or collected by the ROs through any other source. Reference hereunder is made to various news reports: i." Some of the candidates were asked to describe the method of bathing a Muslim's dead body while in one case the RO got a promises from a potential runner that he would offer five prayers five-time a day."
' The News International 5-4-2013 ii. "We see our media...Tastelessly broadcast clips of candidates facing bizarre questions from the returning officers vetting the nomination forms of the candidates. In what appears to be an examination of how much of the Scriptures the candidate has mugged up, mockery is being made of what should be a process of determining whether the person concerned is good citizen enough to sit in the legislature. Instead of considering whether he is a law-abiding citizen; if he pays his bills or is a defaulter, the emphasis is on whether or not the candidate knows various dual and verses of the. Holy Qur'an. Of course, as in other matters such as having the graduation rule for prospective candidates, a singularly anti-democratic rule thrust down this country's throat by an army dictator, Pakistan is unique in the world in requiring proficiency in the Scriptures as a qualification for standing in the elections. Indeed, the televised question to a Sindhi candidate as to whether he knew the national anthem was ludicrous in the extreme, too. The anthem as we know is mostly in the Persian language and to ask a Sindhi to say it in proper order is silly and of absolutely no currency in determining whether he is suitable for offering himself as a candidate in the elections.
The Circus, the tamsha by Kamran Shafi- The Express Tribune. 4-4-2012 iii. "Aslam Khan Khattak passed his first - and perhaps most curious - test this week in his quest to become a member of Pakistan's parliament: He correctly named the first person to walk on the moon. The question was posed to Khattak by Pakistani judges, who have provoked both laughter and criticism in recent days in their vetting of potential candidates in the country's upcoming national elections with queries that have veered between the controversial and the bizarre. One candidate was prodded to spell the word graduation. Another was quizzed on the lyrics of the national anthem. A third was asked how she would manage to serve as a lawmaker with two young children at home. Many candidates were forced to recite Islamic prayers to prove they were devout Muslims...."
Pakistani judges provoke laughter, criticism with oddball questions for election candidates- APP 4- 4-2013 v. "The district returning officers (DRO) across the country are enjoying themselves limitlessness while they tease, slice and dice the worthless politicians. From religious knowledge to the familial intricacies, everything is being asked in full court room. Perhaps DROs know that these corrupt politicians will loot and plunder the nation after elections, so they are humiliating them in advance.
Anyway, I have culled ten most weird, funny, and strange questions which are asked by the DROs from he candidates during the nomination and acceptance of the papers and to see whether candidates fulfill the 62/63 or not. Here you go.
1. In which situations, bath becomes mandatory for the married Muslims?
2. How many wives you have, and how many nights you spend with each of them?
3. Do you believe in honeymoon?
4. Have you been circumcised properly?
5. Have you stood in front of girls college ever in your life?
6. Have you ever seen any censored movie?
7. Have you ever eaten pork?
8. If you are dying with thirst in a desert, and get a bottle of alcohol, would you drink it?
9. If in a river, .a greai religious scholar, your wife and son are drowning, and you can save only one, to whom would you save?
10. If you win the elections, won't it disturb the lives of your husband, kids and the in- laws?"
10 Funniest Questions asked by Election Commissioner' by Ghazala Khan Pakistani Spectator- Candid blog dated 5-4-2013
5. At this junction the President of the Lahore Bar High Court Association was summoned and senior advocates sitting in the court namely: M/s. Shehzad Shaukat, Bilal Hasan Minto were invited as amici curiae to assist the Court on the nature of the power exercised by the ROs while conducting scrutiny of the nomination papers.
6. Mr. Naseem Kashmiri, learned DAG submitted that a candidate submits a declaration on oath along with his nomination papers stating that he fulfils the qualifications under Article 62 and is not subject to any disqualifications specified under Article 63 of the Constitution. He submitted that the RO has no jurisdiction to doubt or challenge the veracity of the said declaration sworn on oath by the candidate unless there is convincing tangible evidence to the contrary before the RO. In the absence of any evidence, the RO has no lawful justification or authority to doubt or suspect the declaration made on oath by the candidate. The mechanism of bombarding the candidate with inquisitive self-styled questions to assess the qualifications of the candidate under Article 62(1)(e),
(f) and (g), without any tangible evidence placed before him, is not the prerogative of the RO. The RO can only proceed on the basis of the tangible evidence before him or procured by him from supporting authorized agencies like FBR, NAB, SBP or NADRA.
7. Mr. Abid Saqi, Advocate, President of the Lahore High Court Bar Association, submitted that the image of the judiciary has been seriously undermined as ROs are asking irrelevant questions from the candidates in front of electronic media resulting in embarrassing the candidates and tarnishing their reputation which is protected under Article 4 of the Constitution. He submitted that the RO has no jurisdiction to embark upon an unguided and unstructured inquiry by posing irrelevant questions without first being seized of any tangible material against the candidate. He elaborated that the RO is restricted to the record before him and his questions and inquiry can revolve around the information before him and no more.
8. Mr. Muhammad Shehzad Shaukat, Advocate Supreme Court of Pakistan, who was called as an amicus curiae submitted that under section 14(3) of ROPA, the Returning officer has to be first SATISFIED before proceedings further with any inquiry. Satisfaction according to the learned counsel is always on the basis of some material placed before the officer and not otherwise. In the present cases, the ROs are throwing volley of questions at candidates without any basis and guided by their own whims and caprice which is not permitted under the law. He proposed that the RO be restricted to the material before them.
9. Mr. Bilal Hassan Minto, Advocate, who was also called as an amicus curiae, submitted that Article 63 of the Constitution lists disqualifications and each and every disqualification is triggered by an event of default. Whereas, under Article 62 of the Constitution, except perhaps in the case of fake degrees where the word "honesty" is involved and it is indisputable that the submission of a fake degree tantamount to making a dishonest statement, more so because the statement itself was' made in order to fulfill a condition related to contesting elections and was not a general statement in the course of ordinary life. He further submitted that if this kind of exercise of allowing ROs to invoke these abstract provisions on the basis of their personal understanding is allowed, it may result in an anomalous situation leading to conflicting results in respect of the same candidate submitting papers in different constituencies. He lastly submitted that since the candidate files an affidavit, objector should also file an affidavit unless he is relying on a public domain material.
10. Mr. Minto, concluded by saying that in the best wisdom of the Constitution, matters enlisted in Article 62(1)(e), (f) and (g) of the Constitution have a deep nexus with faith and are deeply subjective and should be best left to the electorate as adjudication on such an abstract area is not possible except perhaps the word "honest" in case of fake degrees. He also submitted that Article 218 or sub-constitutional legislation cannot control or fine tune the meaning of Article 62.
11. Learned Standing Counsel and the Representative of the PECP supported the general argument that the RO cannot have an unchecked power to ask irrelevant questions which have no correlation with the matter in hand and the sanctity of the declaration made by the candidate cannot be doubted by the RO unless there is tangible evidence on the record or procured by the RO from the authorized agencies mentioned above.
12. The above learned counsel were unanimous in submitting that the line of questioning adopted by the ROs in Punjab has damaged the image of district judiciary resulting in making a mockery of judicial proceedings which are supposed to be adversarial and neutral. It is prayed that this unguided use of discretion by ROs be checked and immediately regulated if the dignity and honour of the judiciary is to be safeguarded.
13. All the learned counsel, the President of the Bar Association, the learned amici curiae, as well as, the representative of the ECP are unanimous in submitting that once a candidate has declared that he fully complies with Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") and has sworn an affidavit in support of it, the same cannot be challenged by the RO without being first satisfied under Section 14(3) of ROPA to proceed further with the inquiry in the matter.
14. I have heard the arguments and gone through the law on the question.
15. Reference is made to Letter dated 2-4-2013 issued by the Hon'ble Chief Justice of Pakistan to all the District Returning Officers, an extract from the said Letter is reproduced hereunder:-- "'The district judiciary is our face and we depend upon our judicial officers, their deployment in the election process was in the national interest and now it is their moral and legal duty to prove their worth and credibility by conducting election in a free, fair and transparent manner. As the process of entertaining nomination papers and scrutiny is underway thus any decision taken by the judiciary would have everlasting impact in shaping the destiny of this nation, particularly at this crucial stage when the country and the nation is confronted with number of problems and difficulties; therefore, we should come out with commitment to enforce the constitutional mandate and ensure that the elected representatives come forward to govern this country without having any label of any disqualification. The Judicial Officers are required to discharge their responsibilities in accordance with law, without succumbing to any sort of pressure and treat all and sundry equally across the board.
' Due to my preoccupation in judicial work, it would not be possible for me to reach each and every judicial officer presently engaged in election process, so I am sending this letter with a pledge that we must strive together to strengthen the democratic order and enrich the judicial norms."
16. It appears that the ROs have failed to understand the spirit and meaning of the above letter.
Instead of building public confidence and trust, they have done otherwise, deeply damaging the image of the judiciary by embarking upon an inquisition through self-tailored subjective questions in-front of live electronic media. In their overzealous virtuousness they have lost track of the law.
Under section 14(3) of ROPA, the RO can carry out a summary inquiry on its own motion, but this inquiry is not a fishing or a roving inquiry into the personal affairs of a candidate, insensitively trampling over his personal belief and deep rooted religious commitments. The inquiry envisaged under the law can only be triggered by the information placed before the RO i.e, the information in the nomination paper and the objections filed against him by the other side, if any, or information gathered and collected, on his own, through credible sources mentioned above.
17. The nomination paper carries the following declaration and oath of the candidate: "DECLARATION AND OATH BY THE PERSON NOMINATED.
1. I, the above mentioned candidate, hereby declare on oath that,---
(i) I have consented to the above nomination and that I fulfil the qualifications specified in Article 62 of the Constitution and I am not subject to any of the dis-qualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/ Provincial Assembly."
18. The above declaration executed on oath declares that the candidate fulfils the qualifications under Article 62 and is not subject to any disqualifications under Article 63 of the Constitution. The RO has no reason to doubt the veracity and sanctity of this declaration unless there is evidence to the contrary and the RO after being fully satisfied arrives at the conclusion that the above declaration is false. Articles 62 and 63 of the Constitution will only be pressed against the candidate if there is evidence before the RO and he is satisfied that the said Articles can be attracted. The RO cannot embark upon a subjective inquisition by throwing a volley of self-styled questions, unrelated. To the record before him, to determine, according to his subjective understanding whether Article 62(1)(e) , (f) and (g) is attracted. The suo motu power of the returning officer to carry out a summary enquiry is restricted and revolves around the material placed before him. RO is a neutral umpire and an impartial arbiter who is not vested with the power to assume an inquisitorial role of holding an invasive inquiry into the personal affairs of a candidate totally unrelated to the information placed before him.
19. Section 14(3) of ROPA provides: "The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in subsection (1), conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that...." (emphasis supplied)
' The word SATISFIED means that the RO must have credible evidence before him in order to proceed against the candidate. Hence, the power exercised by the RO under section 14(3) of ROPA is restricted to the information in the nomination paper or placed before the RO through the objections filed against the candidate, if any or the information gathered by the RO through authorized sources. The RO cannot go outside the scope of the material placed before him and build a hypothetical construct to judge the qualification of the candidate under Article 62 by posing a set of random questions that come to the mind of the RO and according to his limited understanding meet the requirement of the above Article. Any questions asked by the RO must emanate from the record before him and not otherwise.
20. The RO must not forget that the real and unforgiving test of the candidate is yet to come, in the court of the people of Pakistan in the national elections and, therefore, the RO must not over step the law and exceed his limits, lest the scrutiny appears to be a witch-hunt, tarnishing the neutrality and independence of the judiciary as a whole as the newspaper clippings, referred to above, have sadly pointed out.
21. The declaration of the candidate on oath means that it is to be assumed that the requirements of Article 62 have been fulfilled. This assumption can only be pierced if there is credible evidence to the contrary but not through poking silly personal questions from the candidate by the RO. Allowing the RO to ask questions on his own is to allow him to interpret Article 62(1)(e), (1) and (g) of the Constitution. Any such move will defy the Constitutional wisdom, whereby the said Article has been left undefined and without any parameters, subject to the exception discussed above.
22. It is also observed that the proceedings before the ROs are being televised live on private TV channels in the electronic media and it is because of this that some of the ROs are asking irrelevant and unrelated questions to gain cheap publicity. While the veracity of this fact cannot be ascertained, it is but clear that the use of live video recording of court proceedings is not permitted.
This has never been done in our country and more importantly there has been no permission granted to the district judiciary by the High Court to allow access to electronic media to enter the court rooms and capture live proceedings nor has the ECP permitted the ROs or the media to do so.
23. The representative of ECP confirmed that no such permission has been granted to the ROs and no permission in this regard has been given by the Lahore High Court, Lahore which has been confirmed by the Registrar of this Court.
24. For the above reasons the following interim directions are issued under Articles 199 and 203 of the Constitution to safeguard the image of the judiciary and to maintain that the judiciary is there to achieve fair and free elections and not to carry out a witch hunt and demean the politicians of our country:
25. I. All the District and Sessions Judges/District Returning Officers/Returning Officers are directed to immediately refrain from asking random intrusive and inquisitive questions that have no nexus with the information supplied in the nomination paper or do not arise from the objections raised by the other side or from the information collected or received by the 110 from the authorized agencies like NAB, SBP, FBR and NADRA as per the direction issued by the ECP dated 31-3-2013 titled "Scrutiny of nomination papers by the Returning Officers".
II. The declaration of the candidate on oath submitted along with the Nomination Paper shall only be questioned by the RO if there is tangible and credible material to the contrary on the record in the shape of nomination paper or objections by the other side or information procured by the RO through the above authorized agencies.
III. The ECP, PECP and DROs all over Punjab are directed not to allow electronic media to telecast the judicial proceedings from inside the court room on national television, however the members of the press/media can be inside the court to record and report the proceedings.
IV. The ECP and the Registrar of this Court are directed to immediately dispatch a copy of this order through fax to all the DROs in the Province for immediate compliance. This order will also be uploaded on the website of the Lahore High Court for easy access and will be given wide publicity in the national dailies so that the unfortunate negative impression generated against the district judiciary is washed away in no time.
5. To come up on 8-4-2013 for further proceedings.