Shahid Karim, J:- This consolidated judgment shall decide ICAs No.66/2015, 78/2015, 83/2015 & 84/2015 as all the appeals involve similar question of law and facts .
2. ICAs No.78/2015, 83/2015 and 84/2015 is a sub set of appeals which have been preferred by the appellants who were not parties to the Constitutional petition bearing W.P No.31586/2014 (Petition) from which the appeal (ICA No.66/2015) has arisen. Though the appellants in these appeals were not parties in the original petition, they have challenged the impugned judgment dated 22.12.2014 on the ground that their rights vested under the law as voters have been impinged upon by the impugned judgment and so as aggrieved persons they have a right to institute these appeals.
Relevant Facts:
3. A synoptical resumption of the facts in this appeal (ICA No.66/2015) are that on 27.10.2014 a circular was issued by the Election Committee for the election to the 17th National Council 2015- 2017 and branch Council. The circular spelt out the time table in pursuance of regulation 11 (3) of the Cost and Management Accountants Regulation, 1990 (Regulations) (revised up to September 30, 1999) for election to the 17th National Council to be held on Sunday, the 18th January, 2015. By this schedule the scrutiny of the nomination papers was to be held on 26.11.2014 and the date of circulation of the final list of contesting candidates was given as 17.12.2014. The date of balloting was fixed to be 18.1.2015.
4. On 12.11.2014 a Notification was gazetted by the Finance Division, Government of Pakistan bearing SRO No.1020(I)/2014 (Notification). This Notification was issued in the exercise of the power conferred by subsection 1 of section 34 of the Cost and Management Accountants Act, 1966 (Act) by the National Council with the approval of the Federal Government. By this Notification amongst others, amendment was made in Regulation 25 of Regulations (amendment) and the relevant part is reproduced as under: "(b) in regulation 25, for the words "where he is allowed to cast his vote by post", the words "that overseas members shall be able to cast their votes remotely online via the web-based voting portal" shall be substituted."
5. The above amendment gave rise to a controversy which was the cause of action for the Constitutional petition and the instant appeals.
6. To complete the narration of facts, a purported undertaking (undertaking) was circulated amongst the contesting candidates for the election to the National Council and this document required the candidates to undertake that they had read and understood the Notification dated 12.11.2014 issued by the Finance Division (although the date in the undertaking is 11.11.2014 which is not the date of the gazetted Notification), under which the present elections were being held for the National Council and branch Council. Respondent No.1 in this appeal, Ghulam Abbas, is a contesting candidate for the election of National Council and challenged the said Notification in the Petition with the following prayer: "(I) Respondent be directed to hold an Election of National Council and Branch Council as per Election Schedule dated 27-10-2014 under the Cost and Management Accountants Act, 1966 and Cost and Management Accountants Regulation, 1990 in a free, fair and transparent manner.
(II) Declaration be made to this effect that undertaking issued by the respondent No.3 to implement the Notification of amendment dated 12-11-2014 is without lawful authority in violation of Election Schedule already issued as per law.
(III) The amendment made in the Regulations cannot operate retrospectively.
(IV) Respondents may kindly be directed to hold election on 18-01-2015 as per schedule already issued on 27-10-2014.
(V) Any other relief deemed suitable to the peculiar facts of this case may also be afforded to the Petitioners."
7. The primary challenge, it is clear from the prayer clause reproduced above was that an amendment in the Regulations vide a Notification could not operate retrospectively and that the undertaking issued by respondent No.3, the Election Committee, was without lawful authority and in violation of the election schedule already issued. In a nub, he submits that the Notification could not be made applicable to the elections currently underway for which the process had been set in motion and, therefore, the applicability of the said Notification, if at all, was to take effect from the elections which were to be held after the present elections.
Appellants' Submissions:
8. The charge on behalf of the appellants was led by Mr. Sameer Khosa, Advocate (in I.C.A No.66 of 2015) and the other counsels adopted his arguments. The learned counsel for the appellant submitted that Regulation 25 in which the amendment was made, relates to the mode of elections and by Regulation 12 a Member whose name stands entered in the register shall be entitled to vote in the election of the Council. He submits that the amendment brought about in Regulation 25 merely granted a right to cast vote to the overseas voter online via web-based voting portal. Under the Regulation 25 as it stood before the amendment, the overseas voters still had a right to cast their vote but this was subject to a person applying for it and being permitted to do so as also that the said method was cumbersome and tedious and was not in conformity with the moving times.
He has taken us through the historical background of the said amendment which had its provenance in the Annual General Meeting (AGM) of the Institute of Cost and Management Accountants of Pakistan held on 30.12.2009 wherein the said proposal was floated. Following on the said decision in the AGM, the National Council in its meeting held on 24.12.2011 decided as under: "After some discussion, the following decisions were taken: 1- While the NC is supportive of the online voting due to paucity of time for the current elections, it is proposed that it is implemented from the next election; 2- To keep the election process transparent and clear as well as due to legal complication in case of overseas votes, postal votes shall not be allowed; 3- It was agreed Courts where the Registered Office of the Institute is situated shall have exclusive jurisdiction; 4- The suggested draft is sent to the Federal Government for changes in the Regulations."
9. Thereafter, the procedural formalities for the said amendment to be incorporated were followed which are not essential to be mentioned in detail here. Suffice to say that the National Council in its meeting dated 20.07.2014, an extract of which is at page 227 of this appeal, approved the amendment to the Regulation 25 which was then forwarded to the Ministry of Finance which, in turn, issued the Notification dated 12.11.2014. Learned counsel for the appellants submits that the Election Committee circulated the Notification to its members by E-mails dated 15.11.2014 and through courier also.
10. The learned counsel for the appellants has urged that the challenge in the appeal was not to the Notification but only to the undertaking which was required from each candidate. According to him, the said Notification has not affected the election schedule in any manner but only makes an amendment in the Regulations to confer a right on the overseas members of the Institute so that they could vote expeditiously and hassle-free without having to go through the cumbersome process of voting through post and seeking a prior permission. He further submits that the amendment enfranchised the overseas members, is an affirmative action and advances the right to vote. A procedural amendment, according to him, is retrospective in application and since the present amendment also relates to procedure, it has to be made applicable retrospectively and thus, the present elections will be governed by the said amendment.
Respondent No.1's Submissions:
11. Mr. Waqar A. Sheikh, Advocate for respondent No.1 (the petitioner in the Petition) reposted that the Notification could not have an immediate and retrospective effect and, therefore, could not be made applicable to the elections which were underway and for which voting was to be held on 18.1.2015. According to him, under section 19(3) of the Act, the Council is obliged to publish a list of members of the Institute on the first day of July of each year and a copy of the list has to be sent to every member of the Institute. This important formality, according to him, has gone abegging and the Council has not complied with it. He has alleged mala fide and collusiveness on the part of the appellants herein, the members of the Council as well as the overseas members who have chosen to file an appeal, the contents of which appeals, according to him, are verbatim replication of the appeals filed by the Institute. He submitted that the list of the members to be issued in pursuance of section 19(3) of the Act was deliberately withheld to await the issuance of the Notification. He has referred to the circular issued by the Election Committee which, without equivocation, mentions that the elections are to be held on the basis of amendments in the Regulations revised up to September 30, 1999. He further alleges that till date no notice has been given by the Election Committee which is charged with conducting the election and it is extremely doubtful that the undertaking ever was issued by the Election Committee also. The main plank of his arguments was that the respondent No.1 has been caught unawares and the Notification amounts to a change in the schedule of elections which cannot be permitted under the Act or the Regulations.
12. Mr. Sameer Khosa, Advocate, in rebuttal, submitted that the list under section 19(3) of the Act was issued by the Council on 19.12.2014 and passionately submitted that if the impugned judgment was upheld it would be tantamount to disenfranchise the overseas voters who have not been able to vote in the last elections as well.
DETERMINATION
13. From the resume of facts adumbrated and the submissions of the parties, it is clear that the respondent No.1/petitioner did not broaden his challenge in the Constitutional petition to the vires of the Notification. He has merely prayed that the Notification is belated and impinges upon the electoral process which had already been set in motion by the issuance of the election schedule on 27.10.2014. We will, therefore, confine ourselves to determining the question whether the Notification and the amendment brought about in Regulation 25 are applicable to the process of current elections for which the votes are to be cast on 18.1.2015.
14. We will bear in mind that the election schedule was published on 27.10.2014. On the said date the Notification by the Finance Division had not been gazetted which was done on 12.11.2014. Therefore, it is reasonable to assume that on the day the election schedule was announced, the candidates to the election did not have the Notification in contemplation nor did they foresee that such Notification would be issued in the midst of the election process. It is true that the process for the said amendment had already been initiated by the National Council and the amendment had been approved in its meeting dated 20.07.2014 yet it does not ineluctably follow that a Notification would be gazetted by the Finance Division in the foreseeable future. Moreover, election is a highly skilled enterprise in which the prospective candidates are expected to market and put across to the voters their unique ability to be elected to the position on offer. It is essential and of fundamental importance that the candidates have a right to sufficient time to canvass their candidature and to be able to approach the members of the electoral college in order to solicit their vote. There is a purpose in law to the issuance of an election schedule which is announced by the Election Committee. And that purpose seems to be to clearly delineate the steps in the election so that the prospective candidates can manage and regulate their election campaigns. There is no scope for the candidates to be caught unawares or to be confronted with a procedure which was not there previously. We are conscious of the fact that the amendment in Regulation 25 is aimed at facilitating the overseas voters yet we also have to keep in view the rights of the candidates and they cannot be prejudiced to their detriment by the insertion of an amendment, which has the unholy effect of recasting the candidates' election campaigns.
15. The election has to be conducted by the Election Committee whose role is conspicuously facile and not in keeping with the role which is expected of the Election Committee for the conduct of elections. It is not clear from the contents of the undertaking as to which authority has issued the same. The Election Committee should have taken a clear and independent stance on the Notification which is not forthcoming. It had to answer as to how the election schedule issued by it on 27.10.2014 would be impacted by the issuance of the Notification and the amendment in Regulation 25 brought about. This is important in view of the fact that in the circular dated 27.10.2014 issued by the Election Committee it is mentioned clearly that the time table has been finalized in pursuance of Regulation 11 (3) of the Cost and Management Accountants Regulation 1990 (revised up to September 30, 1999). Thus, it follows indubitably that the Election Committee also did not have in contemplation the impugned Notification and, therefore, issued the schedule and was planning to conduct the elections on the basis of Regulations revised up to September 30, 1999. Therefore, it was the obligation of the Election Committee to have determined as to whether the Notification was applicable and whether the election schedule ought to have been amended in the light of the Notification or not. This has not been done and the Election Committee has merely taken the Notification in its normal stride assuming that the effect of the Notification would apply to the current elections.
16. An important limb of the arguments of respondent No.1 was to non-publication of the list of voters in pursuance of section 19(3) of the Act. Mr. Sameer Khosa Advocate upon instructions has submitted that the list was issued on 19.12.2014. In this regard, Regulation 21 would also be important which is reproduced as under: "21. Intimation of final list of nominations to voters: -- The election committee shall omit from the list of validly nominated candidates the names of candidates who have withdrawn their candidature and send the final list of such candidates, here in after referred to as contesting candidates, to all the candidates and voters by registered post at least 30 days before the date of balloting."
17. The learned counsel for the appellants submitted that the Council had in its meeting dated 03.12.2011, decided not to allow postal votes to be cast. The relevant extract is reproduced as under: "PROCEDURE OF VOTING FOR OVERSEAS MEMBERS AS WELL AS LOCAL MEMBERS WHERE POLLING STATIONS ARE NOT ESTABLISHED AND SUGGEST CHANGES IN THE REGULATIONS.
The Council reviewed the recommendations of the President and after detailed discussions agreed in principle to allow e-voting for overseas and local members where polling stations are not established. The Council was also of the view that postal votes should not be allowed due to complications as well as in the interest of transparency of the elections. It was also agreed that the software of ICAP may be used for these elections. Members were of the view that opinion of the contesting candidates should be given due weight. The Council gave mandate to the President to take/consider feedback of Mr. Mansur ur Rehman Khan and intimate process of soliciting opinion of the members. In case of adverse opinion, guidance of the Council shall be serviced."
18. His precise submission is that if the impugned judgment was allowed to stay, the overseas voters will be disenfranchised because of the decision of the Council referred to above and will not be able to cast their postal votes as well. The argument suffers from an inherent contradiction.
19. We are not convinced whether the Council could have taken a decision to bar the members from casting their votes through postal votes. This, in our opinion, would be tantamount to taking away the right conferred by Regulations most specifically Regulation 12 which is reproduced as under: "Members entitled to vote: -- A member whose name stands registered in the Register on the date of 30th June immediately preceding the date of an election shall be entitled to vote in the election to the Council provided that such a member shall be ceased to be so entitled if on the date of the balloting his name stands removed from the Register, as a result of disciplinary actions."
20. The above Regulation gives a right of vote to all members whose names stand registered in the Register on 30th June immediately preceding the date of an election. Upon a reading of this Regulation, it becomes apparent that the overseas members are by virtue of the Regulations entitled to cast their vote through postal ballot.
21. Herein lies the contradiction which we have alluded to above. By its earlier decision, as submitted by the learned counsel for the appellants, the overseas members were debarred from casting their votes through postal ballot and this resulted in the overseas members failing to exercise their voting right in the previous elections and now suddenly after the amendment through the Notification the Council has resurrected the otherwise dormant right till date of the overseas members to cast their votes. This policy to say the least is unreasonable and irrational. It cannot be left to the discretion of the Council to enfranchise and disenfranchise the voters on its whims without regard to the provisions of the Act and the Regulations. Be that as it may, since there is no provision for an undertaking to be furnished by the candidates of the nature which has sought to be taken, we are of the opinion that such an undertaking is ultra vires the power of the Election Committee and has no legal legs to stand upon. The said undertaking impacts upon the right of the candidates to participate freely and fairly in the elections through a process which is equitable and provides equal opportunity. Further, it offends and contravenes Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 the due process clause.
22. The learned counsel for the appellants sought to invoke the procedural nature of the amendment to urge that it applies retrospectively and hence to the election to be held on 18.1.2015.
The rule that procedural law applies retrospectively is not an immutable principle and admits of exceptions. Even if we were to agree that the amendment was procedural in nature, the instant was a case which should be an exception to that rule. However, the amendment, in our opinion, regulates a substantive right to vote which was previously qualified by a prior permission to vote through post. The amendment has been tailored to enable the overseas voters to cast their votes and is thus sartorial to that extent. The question at the heart of this case is whether this right is available in the elections to be held on 18.1.2015. The answer lies in balancing this right against the right of the candidates to be dealt with fairness and reasonableness. It would be irrational and fantastic to perceive that the respondent No.1/petitioner can effectively canvass in this short period allowed to him to woo those voters. We were informed that five out of the current eight members of the Council are contesting again. This gives them an unfair advantage over the respondent No.1/petitioner. Canvassing is the soul of any elections and a fair opportunity to canvass and solicit votes is the foundational basis leading to a fair, free and transparent elections. In the instant, we have been swa yed by a beneficial construction of the amendment rather than literal. We have been guided by pragmatism and not formalism. The following observations of Hon'ble Supreme Court of Pakistan in Haji Kadir Bux v. Province of Sind and another (1982 SCM R 582) are instructive: "The foregoing summarization would show that in so far as the question of general principles is concerned there is nothing which would prevent the Courts in Pakistan to adopt beneficial construction as against literal whenever a controversy in this behalf arises. I may add that such a course would indeed be in accord with our own jurisprudence and philosophy underlying the same."
23. Here we are tempted to refer to an observation by Richard A. Posner in his book 'How Judges Think, which says: "Amongst different judicial philosophies formalism, originalism, textualism or nearest contender, active liberty and judicial cosmopolitism, legal pragmatism best describes what Judges do."
24. The Election Committee represented in the circular that the election time table had been finalized in pursuance of Regulations revised up to September 30, 1999. This representation could not be altered to the detriment of the candidates. Moreover, since the Council in its decision referred to above had debarred the overseas votes to be cast by postal ballot, those voters would, in all probabilities, be excluded from the voters list issued. Let us take an extreme example. What if the voters list had been issued and the amendment was gazetted two days before the Election day: would the overseas voters still be entitled to vote? Would this not give rise to an extremely complicated and chaotic situation? How would the Election Committee react to this ? The amendment has the effect of delimitation of the constituency for the election to the Council. A substantial number of voters have been suddenly introduced as voters. On the touchstone of transparency, fairness and good governance the amendment ought to have been notified ahead of the fixation of the election schedule so that the candidates organize their election strategies in the light of changes made. In order to lend certainty to the process it is essential that changes should not be introduced after the publication of election schedule. We can seek an analogy from the Election Laws of Pakistan and the precedents of the Superior Courts on a similar issue. The law is very much well settled that after the pronouncement of election Schedule no alteration can be made in the electoral roll or the delimitation of constituencies. In the case of GOHAR HAYAT NASIR versus A.C. SAMUNDRI/REGISTRATION OFFICER, SAMUNDRI and 2 others (1992 CLC 1005) it was held that Correction, alteration or addition in electoral rolls to be made before announcement of election schedule. No correction, alteration or addition in electoral rolls could, however, be made after the constituency had been called to elect its representative till such time the elections were actually complete. A Division Bench of this honourable Court in the case of MUHAMMAD ASMAIL versus PUNJAB LOCAL COUNCIL ELECTION AUTHORITY, LAHORE and others (1999 M LD 2841) held as follows:- "Now coming to the legal point that after electoral units has been called to elect its representative there could be no modification or change in the voters I list. The learned counsel for respondent No.8 tried to meet this legal objection with the argument that the voters have already been registered and it was only adjustment. The provision has a definite rationale. This was not the voters' list for Ward No.19, therefore, they became voters for Ward No.19 on 19-5-1998 when respondent No.2 transferred the voters list to that ward. They were not voters of this Ward earlier, therefore, the case is fully covered by section 20 of the Election Rolls Act, 1974. The election process is comprehensive and detailed spread over months. It starts with registration of votes, delimitation and objection to the same. It is, therefore, that schedule is announced. The purpose of section 20 of Order 1979 seem to be to attach finality to the delimitation and voters list on the eve of declaration of the schedule of election. In the present case, the impugned order of respondent No.2, even upset the delimitation as he changed the area by taking part of voters' list from Ward No.20 and adding to Ward No.19."
25. Learned counsel for the appellants relied upon Ch. Muhammad Yusuf and others v. Azad Government through Chief Secretary, Muzaffarabad and others (PLD 2001 Azad J&K 60) in support of the proposition that amendments in the procedure can be brought about after the election schedule has been announced. This case turned on its own facts and was in relation to the amendment in the qualifications brought about by an Ordinance promulgated on 18.5.2001. The question was whether the qualification introduced by this law was applicable in the case of candidates who were contesting the elections to the Azad Jammu & Kashmir Assembly for the year 2001. It was held that the power to promulgate the Ordinance was not subject to any point of time as also that none of the vested rights of the petitioners had been taken away and being a non- metric was not a vested right. This judgment is an authority for its own facts and is not applicable to the facts of the instant appeals. Here the question was whether the undertaking sought to be taken from the candidates could validly have been taken or not. As also whether introducing a large number of voters in the election process impinged upon the rights of the candidates to a fair opportunity for canvassing.
Even electoral laws of Pakistan do not permit the electoral lists to be amended once the schedule for elections has been announced and the proposed amendment is tantamount to amending the lists for election of the Council.
For the reasons explicated above, we find no force in these appeals which are hereby dismissed.