Syed Mansoor Ali Shah, J:- This consolidated judgment shall decide the instant petition alongwith petitions mentioned in Schedules A & B to this judgment, as common questions of law and facts arise in these cases.
2. Conflicting judgments of two single benches1 of this Court on identical questions of law, both dated 07.10.2105, have necessitated the constitution of this full bench.
3. The following legal questions came up for consideration before the two single benches of this Court. These questions emerged at the time of rejection of nomination papers of the candidates, contesting elections against the seats of General Members, from various Wards of the Union Council under the Punjab Local Government Act, 2013 ("Act") read with Punjab Local Governments (Conduct of Elections) Rules, 2013 ("Rules"). The same legal questions are before us today:-
(i) Whether the proposer and seconder under Rule 12(2) of the Rules, must be from the constituency from where the candidate has been nominated ?
(ii) Whether having a proposer or a seconder in the nomination paper from another constituency is a defect of substantial nature and cannot be remedied by the Returning Officer at the time of scrutiny under Rule 14 (7) of Rules ?
Facts
4. Brief facts common to these petitions are that the Election Commission of Pakistan ("ECP") issued Schedule for Elections to fill the seats of Chairman and Vice Chairman of the Union Council and General Members in each Union Council and Ward in various Local Government Districts. The Notifications called upon the electors of each Union Council and Ward to elect their representative against the above-mentioned seats. The petitions before us exclusively pertain to the seats of General Members to be filled through election from different Wards.
It might be useful to clarify that these cases pertain to a particular Local Government, namely; the Union Council. The membership of the Union Council is elected through direct and indirect votes in the following manner. {{ TABLE }} 2 FIRST SCHEDULE NUMBER OF SEATS IN LOCAL GOVERNMENTS PART-I Union Council Mode of Election Membership Direct Chairman and Vice Chairman, as joint candidates. Direct Six general members.
Indirect Two women members. Indirect One peasant or worker member. Indirect One youth member. Indirect One non-Muslim member. {{ TABLE }} Therefore, the six seats of General Members in a Union Council are filled through direct election held within each of the six Wards, as opposed to the seats of Chairman and Vice Chairman which are filled through direct election held in the Union Council.
6. In the instant case, the petitioner filed nomination papers for elections to the seat of General Member of Ward No.2, Union Council No.6, Ahmed Nager, Tehsil Lalian, District Chinion. The proposer and seconder, admittedly belonged to Ward No.1 of the same Union Council. As a result the nomination papers were rejected by the Returning Officer vide impugned order dated 30.09.2015 in terms of Rules 12(2) and 14(3)(b) of the Rules. The appellate authority, constituted under Rule 14 (10), upheld the rejection of nomination papers vide impugned order dated 08.10.2015. These orders are under challenge before us.
Arguments
7. It has been argued that Rule 12(2) of the Rules does not restrict the proposer or the seconder to the same ward from where elections are being held for the seat of General Member. It is contended that the proposer or the seconder can be from any of the six wards, as long as, the ward is part of the Local Government i.e., Union Council, in this case.
8. They next argued, without raising it as a ground in their petitions, that Rule 12(2) is ultra vires section 27 of the Act which deals with qualifications and disqualifications of the candidate. They contended that rejection of nomination paper of the petitioner under Rule 12(2) results in disqualification of the petitioner when such a disqualification is not recognized under section 27 of the Act.
9. On Rule 14(7) of the Rules, they argued that even if the name of the proposer or seconder is wrongly mentioned in the nomination paper, it can be remedied by the Returning Officer as this defect is not of a substantial nature. They argued that under section 27(1)(c) of the Act, a candidate is supposed to be from the same constituency, therefore, the importance of a proposer and a seconder pales into insignificance. It is contended that the position under section 12 of the Representation of the People Act, 1976 ("ROPA") is different as any person can contest the elections from a constituency, hence the requirement of a proposer or a seconder becomes relevant under ROPA.
10. Learned Additional/Deputy Attorney Generals for Pakistan and the Law Officers of Election Commission Punjab opposed the above contentions. They argued that Rule12(2) refers to a constituency rather than a Ward or a Union Council and a constituency under Rule 2(f) means a constituency that has been delimited under the Act, hence ward in question is the constituency for the purposes of Rule 12(2), hence a proposer or seconder has to be from the same constituency as the candidate and from where the seat of General Member is to be filled.
11. On Rule 14(7) of the Rules they submitted that names of the proposer or seconder in the nomination paper, who are voters from another ward, constitute a defect of a substantial nature and cannot be remedied by the Returning Officer.
Opinion of the Court
12. We have heard the opposing arguments of the parties and have analyzed and examined the legal questions placed before us by going through the provisions of the Act and the Rules.
Representative Democracy and Constituency
13. As a backdrop, elections to Local Government3 (i.e., Union Council, Municipal Committee, Municipal Corporation, Metropolitan Corporation, District Council or an Authority) are constitutional elections under Article 140A of the Constitution and are organized and conducted by the Election Commission of Pakistan under Article 218(3) of the Constitution read with the enabling provisions of the Act.
14. The observance of the principles of democracy and the constitutional guarantee of political justice are constitutional values adumbrated in the Preamble and the Objectives Resolution to the Constitution. "Article 17 (2) has been held to guarantee not only the right to form or be a member of a political party but also to operate as a political party. The forming of a political party, it has been held, necessarily implies that right of carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, functioning is implicit in the formation of a political party. Article 17 (2), it has been held further, provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through political activity relating thereto. Right to form or to be a member of a political party, it has been held comprises the right to participate in and contest an election.4 Participation in an election by an elector means that an elector has a right to elect a member from his constituency. Representative democracy means "a form of government where the powers of the sovereignty are delegated to a body of men elected from time to time,5"therefore, the entire electoral process in a representative democracy is geared to elect a representative from the delimited electoral constituencies. In virtually every democratic nation in the world, political representation is defined by where the citizens live, 6 i.e., the geographical compact or territorial area having a homogeneity of electors.
15. Article 140A of the Constitution provides that a local government system is to be established by devolving political responsibility and authority to the elected representatives of the local governments. The constitutional vision finds mention in the preamble to the Act which provides that the Local Government System is to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level.7 Institutional participation can only be through elections by allowing the citizenry or the constituency to vote and elect a representative.
16. It is to achieve the above constitutional values, vision and objective that areas are delimited and delineated into separate geographical electoral constituencies. Delimitation is based on "distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of the constituencies.8" And for the purposes of the delimitation of a ward of a Union Council:
(a) a ward shall consist of a village, one or more adjoining villages or, in case of an urban area, a census block or adjoining census blocks;
(b) the boundaries of a ward shall not cross the limits of the Union Council; and
(c) the population of wards within a Union Council shall, as far as possible, be uniform9.
17. Delimitation under the law establishes a Constituency [see Rule 2 (f) of the Rules] which means the whole body of voters who elect one representative10 or the people who live in and vote in a particular district11 or a body of citizens dwelling in a defined area and entitled to elect a representative. 12 Constituency is a territorial or geographical compact where a group of voters hold an election to elect a representative. In the present case, Ward is the smallest territorial compact where elections are held to directly elect a person to the seat of a General Member, who then becomes one of the six General Members of the Union Council, which constitutes a Local Government. Therefore, Ward is a constituency. Similarly, Union Council is also a constituency as the pool of voters in the Union Council directly elect a Chairman and a Vice Chairman. Therefore, a Ward and a Union Council are two separate constituencies. Representation of the constituency in the local government is, therefore, integral to political justice, representative democracy and essential for the actualization of the fundamental right to political participation under article 17 of the Constitution.
Proposer and Seconder and the idea of nomination
18. Once the electoral infrastructure in the shape of geographically delimited constituencies has been put in place, the electorate or the constituency is invited to participate in the elections. In order to maintain the sanctity of representation of each electoral constituency, the ECP invites nominations of candidates by announcing the Election Schedule under Rule 11. The relevant extract of the Schedule notified for the constituency in question is reproduced hereunder for reference: ELECTION SCHEDULE {{ TABLE }} Sr. No. Activity Date Public Notice to be issued by the Returning Officers on 09.09.2015 Dates for filing of nomination papers with the Returning 13.09.2015 Officers by the candidates to 17.09.2015 Dates for Scrutiny of nomination papers by the Returning 26.09.2015 Officers to 01.10.2015 Last date for filing of appeals against decisions of the 06.10.2015 Returning Officers rejecting/accepting the nomination papers Last date for deciding appeals by the Tribunals 12.10.2015 Last date for withdrawal of candidature 13.10.2015 Publication of revised list of candidates alongwith symbols 14.10.2015 Poll Date 19.11.2015 {{ TABLE }}
19. No one can contest elections on his own unless nominated by a proposer or a seconder from the same constituency. "Nomination" means the act or instance of appointment of a person to an office.13" The philosophy and rationale of nomination is to actualize the constitutional vision of representative democracy by ensuring that the contesting candidate is a person who has been nominated by the electors (proposer and seconder) of the constituency to represent the constituency, if elected. Nomination goes to the heart of the concept of representation of electoral constituency in a democracy. Every constituency must nominate a candidate to represent the constituency. Without inviting nominations, anyone can come forward and contest elections from an electoral constituency resulting in a sham electoral representation, thereby usurping the right to political participation of the voters of the unrepresented constituency. In order to confirm the representation of the constituency, the proposer and a seconder have to sign the nomination papers of the candidate contesting from the constituency. The statutory requirement of a proposer and a seconder to be from the same constituency is provided in Rule 12 (2) of the Rules: Rule 12 Nomination for elections.-
(2) Any voter of a constituency may propose or second the name of any duly qualified person to be a candidate for an election of a member or, as the case may be, the Chairman and the Vice Chairman of that constituency.
This Rule mandates that a voter must be from the same constituency from where the candidate is contesting elections. This is both, an expression of confidence in favour of a candidate to represent the constituency and also an affirmation, that the electoral constituency is being represented. As explained above any territorial or geographically area, which has been delimited for the purposes of holding elections, is a constituency. As elections are being held in a Ward which is a delimited electoral area, to fill the seat of a General Member, a Ward is, therefore, a constituency and the proposer and the seconder must be from the same said ward/constituency for the nomination papers to meet the requirement of Rule 12(2).
20. It is pointed out that judgment passed in W.P. No.29531/2015 relied upon the repealed version of Rule 12(2). The repealed Rules were notified in the Gazette of Punjab on 16.11.2013 and were repealed through the existing Rules on 06.12.2013. The repealed Rule 12(2) provided as under: Rule 12(2): Any voter of a Union Council or Ward may propose or second the name of any duly qualified person to be a candidate for an election of a member or as the case may be, the Chairman and the Vice Chairman of a Union Council. (emphasis supplied)
The judgment relied upon the said provision to allow the nomination papers of a candidate with proposer or seconder from any ward of the Union Council instead of a particular ward in which the elections were being held, as a consequence, the proposer and seconder need not be from the same constituency. We don't subscribe to this view. In any case the Rules relied upon stood repealed, therefore, the view taken in this judgment does not require any further consideration.
21. It was argued that a ward is not a local government under section 2(v) of the Act and as the elections are for electing members of the local government, the proposer and seconder can be from any ward of the local government. A local government is "an administrative body for a small geographic area, such as a city, town, county, or state. A local government will typically only have control over their specific geographical region, and cannot pass or enforce laws that will affect a wider area. Local governments can elect officials, enact taxes, and do many other things that a national government would do, just on a smaller scale."14 Similar functions of a Union Council are listed under section 72 of the Act. A Ward on the other hand is not a local government and does not enjoy any such functions and is merely an electoral constituency for the purposes of the elections.
The election process under the Act and the Rules work on the basis of electoral constituencies. A constituency is primarily a geographical area with a pool of electors and can also happen to be a local government. The importance of a proposer and seconder is in the context of a constituency and not of a local government. Therefore, the argument that as a ward is not a local government under section 2(v) of the Act, the proposer and the seconder must be from the local government i.e., union council (i.e., any of the six wards), instead of a ward. If this were correct, certain wards in a Union Council would go unrepresented. This is against the spirit of representative democracy and equitable representation of electoral constituencies.
Qualification vs. Nomination
22. Qualifications and disqualifications of a person desirous of being elected as a member or to hold an elected office are provided for under Section 27 of the Act. To be qualified to be elected as member of the local government is one thing and to participate in the electoral process and contest the elections is yet another. A qualified person may or may not contest the elections, but once he decides to jump into the electoral fray, he is subjected to the rigours of the electoral scheme. Even a person qualified to be elected as member cannot contest elections unless he is nominated from a constituency to contest the elections. Nomination is, therefore, integral to the electoral process for the constitutional and political reasons explained above. Qualification of a candidate alone does not meet the constitutional requirement of representative democracy and political justice. Qualifications coupled with valid nomination achieves this constitutional vision.
23. Even otherwise, section 29 of the Act provides that the elections shall be conducted in the manner prescribed. Section 144 deals with the power of the Government to make Rules, which provide for matters enumerated in Part-1 of the Seventh Schedule. First item of the said Part of the Schedule deals with conduct of elections. Hence, the Local Government (Conduct of Elections)
Rules, 2013 is a complete electoral code for conducting the elections under the provisions of the Act. Qualifications and Nomination are, therefore, two disparate themes. One is a precondition for participating in the elections, while the other is a mandatory part of the electoral process and is there to meet the democratic and constitutional goals which are foundational to any representative elections.
24. Rules 2(e) and (g) of the Rules provide that a person qualified to participate in the elections becomes a "candidate" when he is nominated for an election under the Rules and a "contesting candidate" when he is a validly nominated candidate. No one can contest elections unless he or she is nominated. As discussed above, the purpose and rationale of nomination is that every constituency must be represented and a proposer and a seconder from the same constituency must confirm this by placing their signatures on the nomination papers as per Rule 12. Further, under Rule 12(7), a person may be nominated for a seat in the same constituency by not more than five nominations and under Rule 14(4) the rejection of one nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper. Therefore, invalidation of a nomination paper on the ground of Rule 12(2) or Rule 14(3)(b) has no bearing on the qualifications of the candidate.
Remedying defect in nomination paper
25. Without prejudice to the earlier argument, it has been argued that in case the names of the proposer or seconder in the nomination form are from different constituencies or wards within the same Union Council, the same can be remedied and corrected by the Returning Officer under Rule 14 (7) of the Rules. The requirement of a proposer or a seconder to be from a constituency in which the election is being held is a mandatory provision for the constitutional reasons explained above.
It has also been explicitly provided under Rule 12 (2). Further under Rule 14(3)(b) the nomination paper stands rejected if the proposer or seconder are not qualified to subscribe to the nomination paper. Qualification of a proposer and seconder is that he or she must be a voter from the same constituency wherein the elections are being held and no other qualification is envisaged in the law. Rules 12(2) and 14(3)(b) establish the substantiality of the requirement of a proposer and seconder in a nomination paper. It is a mandatory requirement of law and there is no provision under the law to waive this statutory requirement. The statutory conditionality of a proposer and seconder from the same constituency in which the elections are held is therefore of a "substantial nature" in terms of Rule 14(7) which is reproduced hereunder for ready reference: Rule 14 (7): The Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.
26. Another dimension establishing the substantiality of the above condition is that the candidate enjoys the facility to file more rolls." than one nomination paper and invalidation of one does not invalidate the other. Under Rule 12(7), a person may be nominated for a seat in the same constituency by not more than five nominations and under Rule 14(4) the rejection of one nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper. With this flexibility and concession available under the law, Rule 14(7) has to be viewed and interpreted strictly and a defect in the constituency of the proposer or seconder is to be considered as a defect of a substantial nature.
27. Defect of a substantial nature can also be gauged from the language of Rule 14 (7) and the kinds of errors mentioned therein. The relevant part of which states: "....Including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.15" Applying the established interpretative canon of noscitur a sociis i.e., associated words bear on one another's meaning,16 the nature of errors e.g. Name and serial number, etc. Are clerical and cosmetic. Similarly, applying the interpretative canon of ejusdem generis i.e., where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned,17 to explain "or other particulars" in Rule 14(7), the same cannot go beyond the kind of errors which precede it, which as explained above as merely procedural. Even otherwise, these errors or defects do not have any statutory underpinning like Rules 12(2) and 14(3)(b) of the Rules, which require a proposer and a seconder to be from the same constituency.
28. Almost similar provision under Section 12 of the Representation of the People Act, 1976 ("ROPA") has come up for interpretation before the courts, wherein, it has been held that the said requirement is mandatory. Reliance is therefore placed on: "Rana Muhammad Tajammal Hussain v.
Rana Shaukat Mahmood" (PLD 2007 S.C. 277) and "Mudassar Qayyum Nahra v Election Tribunal, Punjab, Lahore and 10 others" (2003 M LD 1089), "Hafiz Muhammad Abbas v. Returning Officer and 16 others" (1993 M LD 2509) and "Asif Khan v. Returning Officer" (2003 M LD 230).
29. In this view of the matter, we are in agreement with the view taken by the learned single Judge in W.P. No.28694/2015. It is also pointed out that while deciding W.P. No.29531/2015 it appears that the learned single Judge was not properly assisted as he placed reliance on repealed Rule 12 (2), therefore, this judgment does no reflect the correct legal position.
30. It has been argued by some of the petitioners that the Electoral Rolls were not available at the time of filing the nomination papers hence the correct name of the proposer and seconder could not be incorporated. We asked the ECP to place on record a certificate confirming the factual position. They have placed Certificate dated 20.10.2015 on the record ("Mark-A") to show that the Electoral Rolls were made available on 28.07.2105 and the candidates had sufficient time to verify the antecedents of the proposer and seconder. The relevant portion of the Certificate states as under:
2. It is pertinent to mention here that on 28th July, 2015, when delimitation of Union Councils and Wards was completed and finally notified, updated Electoral Rolls up to said date were available for inspection of the general public in the office of respective District Election Commissioners/Registration Officers.
3. It is further certified that even after final publication of delimitation of local areas of the Punjab; the votes were continuously being registered and transferred under section 18 of The Electoral Rolls Act, 1974 till the dates of announcement of schedule for LGE-2015 which were 26-08 2015 (1st Phase), 03-09-2015 (2nd Phase) and 21-09-2015 (3rd Phase). The aforementioned facts would reveal that even after publication of final delimitation on 28-07-2015 sufficient time was available to the general public including prospective candidates to get their votes transferred / adjusted according to delimitation of their UCs and Wards. Having incorporated all the claims for registration of votes and objection for deletion of votes accepted by the Registration Officer, the updated Electoral Rolls were printed by NADRA and sent to DECs / ROs concerned for 1st, 2nd and 3rd Phases of LGE-2015 on 11 09-2015, 24-09-2015 and 06-10-2015 respectively."
31. There is no case before us where the name of a proposer or seconder was under transfer on the basis of delimitation. None of the petitioners has agitated this aspect of the matter in writing.
Therefore, for our purposes the Electoral Rolls were available to the candidates. The argument of the petitioners to this extent is hopelessly misconceived.
32. In view of above it is declared as follows: A. That nomination papers of a candidate are liable to rejection, if the proposer or the seconder is not from the same constituency in which the elections are being held.
B. That mention of a proposer or seconder in the nomination papers from a different constituency is a defect of a substantial nature and therefore cannot be remedied by the Returning Officer under Rule 14 (7) of the Rules.
33. With the above declarations, this petition and the petitions mentioned in Schedule A are dismissed, while the petitions in Schedule B are allowed with no orders as to costs.