Syed Mansoor Ali Shah, J:- Petitioner is a political worker and President of the Central Region (Punjab) of Pakistan Tahreek-e-Insaf (a political party). He has laid challenge to modification Notification dated 07.05.2015 ("impugned Notification) issued by the Election Commission of Pakistan ("ECP") in the wake of bye-elections being held in various constituencies in Punjab, whereby, inter alia, the Members of the National and Provincial Assemblies have been restricted from visiting the area of any such constituency after the issuance of the Election Schedule.
2. It is argued by the petitioner that Imran Khan, the Chairman and party leader of Pakistan Tehreek-e-Insaaf is a member of the National Assembly and by virtue of the impugned Notification cannot visit the area of any political constituency, where bye-elections have been announced, for the purposes of electioneering and electoral campaign in support of the members of the political party contesting the bye-elections. He contends that it is integral to an electoral campaign that the party leaders visit the constituencies and address the electorate and meet the party workers. It is argued that the impugned notification has stifled the electioneering plans of the political party by curbing its political activism, which is a core value of any parliamentary democracy. It is argued that the impugned notification to the extent of this restriction is unconstitutional and offends fundamental rights of the petitioner under Articles 15, 16, 17(2) and 19 of the Constitution.
3. Learned Additional Attorney General for Pakistan readily agreed with the contentions raised by the petitioner and added that physical movement of the political leaders cannot be restrained and they cannot be restricted to visit the area of the electoral constituencies during an election campaign. He submits that restriction on the movement of political leaders and public office holders including the Prime Minister, Chief Minister, Federal Ministers, State Ministers and Advisors to the President is also unconstitutional as these public office holders are also party leaders and cannot be deprived of their political role.
4. Mr. Zafar Iqbal Hussain, Provincial Election Commissioner, Punjab relied on the parawise comments submitted by ECP. Relevant portion of the comments reads as under:
4. The Members of Parliament and Members of Provincial Assemblies are highly influential people.
They exert influence on people of the area concerned as well as on Government. If they are allowed to hold campaign for their favourites the other candidates would not be allowed a level [playing] field and equal opportunity to contest a free and fair Election. The prohibition applies to all and sundry and eliminates discriminations.
6. So far as the examples of other countries are concerned the Commission has to take into consideration the circumstances of its own country. The level of exploitation, political bribery, corruption and black mail is at peak in our country. To look for examples, by the Commission would amount to copying and non-application of mind at its own part.
He has also referred to para 30 of the Code of Conduct for political parties and candidates for General Elections, 2013 (Code of Conduct) which states as under:
30. The President, Prime Minister, Chairman/Deputy Chairman Senate, Speaker/Deputy Speaker of an Assembly, Federal Ministers, Ministers of State, Governors, Chief Ministers, Provincial Ministers and Advisors to the Prime Minister and the Chief Ministers, and other public office holders shall not participate in election campaign in any manner whatsoever. This provision will also be applicable to the Caretaker setup.
Provided that the restriction would not apply to the Speaker of an Assembly to the extent of the constituency from where he himself contesting election, however, he will not use official protocol/resources for running his election campaign. (emphasis supplied)
In the end he submitted that the purpose behind the issuance of the impugned Notification and earlier notifications is to give effect to the constitutional mandate under Article 218(3) of the Constitution, which is to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. He further submits that the impugned modification Notification has been issued in pursuance to the judgment of the august Supreme Court of Pakistan in "Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan" (PLD 2012 S.C. 681).
5. Mr. Shehzad Shaukat, Advocate and learned amicus curiae submits that the impugned Notification is violative of fundamental rights enshrined in Articles 15, 16, 17 and 19 of the Constitution. He submits that the abuse of public office or public funds in an election campaign is already an offence under the Representation of the People Act, 1976 ("ROPA"). He referred to sections 78 (2) (4), 79, 81 (1) (e), 83 (1) (b) of ROPA to submit that apprehensions expressed in the Notification are fully covered under ROPA and in case of any violation by the public office holders, law will take its own course. Section 103AA of ROPA further empowers the Election Commission of Pakistan to even stop the poll at any stage. He further submits that powers under section 203 of ROPA are available to the Election Commission of Pakistan to interfere in the election process if any provision of ROPA is being violated. He submits that mere assumption or likelihood that public office will be abused or public funds will be illegally employed in the elections by the public office holders, does not warrant imposition of restriction on the physical movement of political leaders of a political party. Such restriction amounts to blatant abridgement of the fundamental rights of the citizens and the political party (which is an association of persons/citizens) under Articles 15, 16, 17(2) and 19 of the Constitution. In support of this contention, he has placed reliance on "Ghasi Ram v. Dal Singh and others" (AIR 1968 S.C. 1191), "Krishnamukhlal Bhagwandas Shroff v. Sha. Bhagwan Kashidas and others" (AIR 1974 Gujrat 1), "Charan Lal Sahu v. Giani Zail Singh and another" (AIR 1984 S.C. 309), "P.L. Mehra, etc. v. D.R. Khanna etc. (AIR 1971 Delhi 1) and "Dr. Y. Sivaji v. The Chief Election Commissioner, New Delhi and others" (AIR 1996 Andhra Pradesh 336).
6. Babar Sattar, Advocate and amicus curiae made the following submissions in writing: i. The impugned Notification of the Election Commission of Pakistan appears to fall foul of Articles 15, 16, 17, 19 and 19-A of the Constitution, to the extent that it prohibits individuals not in the service of the state from visiting electoral constituencies during bye-elections. It is settled law that to the extent that any restrictions are to be imposed on fundamental rights of citizens in accordance with law, the least restrictive means ought to be employed. Thus, even if the Election Commission believes that restrictions are to be imposed, in exercise of its powers under Article 218 of the Constitution read with Sections 103 and 104 of the Representation of People Act, 1976, on the freedom of travel, assembly and association of citizens to ensure that the election is conducted honestly, justly and fairly and corrupt practices are guarded against, it must employ the means least restrictive to the enjoyment of fundamental rights of (i) the Prime Minister, Ministers, and MNAs etc., who have been prohibited from visiting the electoral constituencies, and (ii) the rights of the constituents to hear from leaders of political parties to determine which party candidate they wish to vote for. ii. The legitimate interest of the Election Commission of Pakistan in regulating visits to a constituency can be twofold: one, providing level-playing field to all candidates to ensure that election is conducted justly and fairly; and two, guarding against corrupt practices. It is clear from provisions of the Representation of People Act, 1976, that the legislature has defined in significant detail the scope of corrupt practices (Section 78), bribery (Section 79), undue influence (Section 81) and illegal practice (Section 83). None of these sections contemplates absolute prohibition on the right of public office holders and legislators, such as the Prime Minister and MNAs, who are not in the service of Pakistan (as defined under Article 260 of the Constitution), to visit the election constituencies under the garb of guarding against corrupt practices. iii. Under Section 83(1)(b) of ROPA, "obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate." is an illegal practice. Similarly, Section 92 states that, "a person in the service of Pakistan is guilty of an offence punishable with imprisonment for a term which may extend to two year, or with fine which may extend to two thousand rupees, or with both, if he misuses his official position in a manner calculated to influence the results of the election." The provisions of ROPA when viewed in an holistic fashion suggest that the focus of the law is on (i) regulating actions and activities of individuals and not physical movement of individuals themselves, and (ii) those in service of Pakistan and not all public office holders. iv. The Election Commission has the responsibility to ensure that state patronage or largess is not used to influence the outcome of elections and state resources are not used to benefit any one candidate or subsidize his expenses by pooling in state resources to support the election campaign. Appropriate provisions already exist under ROPA for this purpose. v. The guidelines that ECP issues in exercise of its powers under Article 218 of the Constitution read with Sections 103 and 104 of ROPA, must therefore focus on guarding against corrupt practices and illegal activities in a manner that is least restrictive to the fundamental rights of citizens to freedom of movement, assembly, association, speech and information guaranteed by the Constitution. vi. In this regard the practice followed by ECP and authorities in other jurisdiction is to elucidate 'dos and donts' to guide the activities and actions of public office holders, including ministers etc., instead of imposing outright bans on legitimate political activities of public office holders. Through such guidance the election authorities in other jurisdictions specify when official work of public office holders will be seen as patronizing and offering gratification to voters in a bye-election. The guidelines issued in this regard by authorities in other jurisdictions, which focus on how public meetings are to be held, when the actions of a public office holder will be seen as mixing official work with election activities, what actions will be seen as interference with the work of those in the service of state responsible for administering elections and when use of state resources will be seen as subsidizing election expenses of a candidate. vii. The practice of other common law countries appears to be to guide behavior of public office holders and draw lines specifying when the actions of a public office holder will be seen as an impermissible attempt to influence the outcome of an election or impermissible use of state resources to benefit a candidate, as opposed to applying over-broad bans on legitimate political activity of political office holders. viii. There exists legitimate State interest in ensuring that State resources or authority of those in public office is not used to influence the outcome of bye-elections or benefit the candidate of the political party or parties in office. But there exists legitimate public interest in enabling voters in a constituency to hear the message of the various parties seeking their votes from the leaders who represent such parties in and out of Parliament. It is thus imperative to balance these interests and ensure that the restrictions imposed in the interest of fair elections are least restrictive and the Election Commission does not end up usurping fundamental rights of citizens (public office holders as well as voters) in discharging its responsibilities under Article 218 of the Constitution.
OPINION OF THE COURT I have heard the learned counsel for the parties and gone through the submissions made by the learned amici curaie and have perused the record of the case.
8. Brief facts are that due to the upcoming bye-elections in various constituencies, ECP issued similar Notifications dated 16-4-2015, 30.04.2015 and 4-5-2015 for different constituencies.
Therefore, only the first Notification dated 16-4-2015 is being reproduced hereunder for reference: ELECTION COMMISSION OF PAKISTAN NOTIFICATION Islamabad the 16th April, 2015 No.F.8(4)/2013-Cord(1)-WHEREAS, under Article 218(3) of the Constitution of the Islamic Republic of Pakistan it is the duty of the Election Commission of Pakistan to organize and conduct an election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that the corrupt practices are guarded against; AND WHEREAS, Article 220 of the Constitution envisages that it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Chief Election Commissioner and the Election Commission in the discharge of his or their functions; AND WHEREAS, Section 104 of the Representation of the People Act, 1976 provides that anything required to be done for carrying out the purpose of this Act, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct; AND WHEREAS, the Bye-election is being held in Constituency No.PP-196 Multan-III and it is expedient to issue the following directives to ensure free, fair and transparent elections and corrupt practices are guarded against.
NOW, THEREFORE, in exercise of the powers conferred upon it under Articles 218(3), and 220 of the Constitution read with Section 104 of the Representation of the People Act, 1976 and all other powers enabling it in that behalf, the Election Commission of Pakistan has been pleased to direct that;
(i) The executive authorities in the Federation and in the Provinces shall not use State Resources in said constituency where bye-election is being held for unfair advantage of a particular candidate or political party nor exercise undue influence affecting the interest of a candidate or party for participating in any bye-election to be held hereinafter.
(ii) If any person in the service of Pakistan misuses his official position in any manner calculated to influence the result of the election, he may be tried by a Court of Sessions as contemplated under Section 95 of the Representation of the People Act, 1976 and, if found guilty of the offence, may be punished with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both under Section 92 of the Act;
(iii) Bulk transfers/postings of the civil servants shall not be made after the issuance of Schedule of bye-election till the completion thereof;
(iv) Individual transfers/postings of civil servants shall also not be made after the issuance of Schedule of bye-election except under exceptional circumstances, in exigency of service and in public interest, with prior approval of the Election Commission;
(v) After the issuance of Schedule of bye-elections, the President, Prime Minister, Chairman/Deputy Chairman Senate, Speakers of Assemblies, Federal Minister, Ministers of State, Governor, Chief Minister, Provincial Ministers and Advisors to the Prime Minister and the Chief Minister and other public office holders will neither visit the area of any constituency nor shall openly or in secret give any subscription or donation or make promise for giving such subscription or donation to any institution of a constituency nor shall inaugurate commit to undertake or announce any development project therein for the advancement of the campaign of a candidate of his choice and thereby influence the results of elections; (emphasis supplied)
(vi) The Prime Minister, Chief Minister, Federal Ministers, State Ministers, Advisors to the President and the Prime Minister, Provincial Ministers and Advisors to the Chief Minister or any person on their behalf shall not visit the Constituency or a polling station after the issuance of Schedule of by- election till the completion of poll. (emphasis supplied)
(vii) If any of the public office holders mentioned in para (v) and (vi) above is found to have misused his official position to influence the result of an election in any manner whatsoever, legal action shall be taken against such person in accordance with law under section 103A of the Representation of the People Act, 1976, relating to contempt proceedings.
Bye order of the Election Commission of Pakistan.
(Shabbir Ahmed) Deputy Director (Cord)
Impugned Notification dated 07.05.2015 amends clauses (v) and (vi) of all the three Notifications in the following manner: ELECTION COMMISSION OF PAKISTAN NOTIFICATION Islamabad the 7th May, 2015 No.F.8(4)/2013-Cord. In partial modification of this Commission's Notifications No.F.8(4)/2013-Cord(1) dated 16.04.2015, 30.04.2015 & 04.05.2015 regarding bye- elections in Constituencies No.PP-196 Multan-IV, NA-108 Mandi Bahauddin-I and PK-56 Mansehra- IV respectively, the Election Commission of Pakistan is pleased to direct that sub-para (v) and (vi) thereof shall be amended as under:-
(v) After the issuance of Schedule of bye-elections, the President, Prime Minister, Chairman/Deputy Chairman Senate, Speakers of Assemblies, Federal Ministers, Ministers of State, Governor, Chief Minister, Provincial Ministers and Advisors to the Prime Minister and the Chief Minister, Members of the National Assembly/Provincial Assembly and other public office holders will neither visit the area of any constituency nor shall openly or in secret give any subscription or donation or make promise for giving such subscription or donation to any institution of a constituency, nor shall inaugurate, commit to undertake or announce any development project therein for the advancement of the campaign of a candidate of his choice and thereby influence the results of election. (emphasis supplied)
(vi) The Prime Minister, Chief Minister, Federal Ministers, State Ministers, Advisors to the President and the Prime Minister, Provincial Ministers and Advisors to the Chief Minister, Members of the National Assembly/Provincial Assembly or any person on their behalf shall not visit the constituency or a polling station after the issuance of Schedule of bye-election till the completion of poll. (emphasis supplied)
By order of the Election Commission of Pakistan.
(Masud Ahmed Malik) Additional Director General (Elections)
9. The question before this Court is whether it is constitutionally permissible for ECP to impose restriction on the physical movement of a political leader or any member of a political party, who happens to hold a public office, to visit any area of a constituency for the purposes of electioneering after the election schedule has been announced?
10. Objectives Resolution and the Preamble to our Constitution underline that Pakistan is a representative democracy, wherein political justice is guaranteed and the State is dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny. Parliamentary democracy is actualized through participatory and representative political process of elections. Going to polls is an expression of democracy. Cluster of freedoms (fundamental rights) under the Constitution embolden this constitutional promise. Freedoms of movement, speech, assembly, association and information enjoy a unique symbiotic relationship which nurtures democracy and strengthens political institution. Articles 15, 16 19 and 19A bolster political associations by allowing its members the right of movement across the country, the freedom of speech to express and disseminate their political views, the right to hold lawful assemblies to meet, debate and share their political ideas and by giving them access to information. Under Article 17(2) every citizen, not being in the service of Pakistan, has the right to form or be a member of a political party subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. While Article 17(2) literally provides for the right to formation and membership of a political party it has deeper political and democratic undertones, which though unwritten, begin to surface when purposively contextualized in the background of constitutional ethos of political justice and representative democracy.
11. Fundamental rights are not static but are pregnant with immense energy to address the every growing complexities of modern democracy. These unwritten constitutional nuances, waiting to be discovered, make the Constitution an evergreen and a living document. Right to form or be a member of a political party is not limited to clerical formation of a political party or restricted to the secretarial act of membership of a political party but instead carries within it the right of the political party to be able to actively participate in the political life of the country, to be able to freely profess and propagate its political ideology, to be able to mobilize its electoral campaign, to be able to reach out to the people, to be able to participate in the elections and to be able to form government.
12. Our jurisprudence has recognized these penumbras around the fundamental rights. "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". 1 In Muhammad Nawaz Sharif case2 the august Supreme Court held that "the basic right to form or be a member of a political party conferred by Article 17(2) "comprises the right of that political party not only to form the political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of the political party which the electorate has mandated it to carry into effect. Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its normal tenure would, therefore, constitute an infringement of this fundamental right". 3 In Workers' Party Pakistan case 4 the august Supreme Court has held that "the freedom of association, as enunciated by Article 17 of the Constitution, confers a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic system. The 'freedom of assembly' (Article 16) and 'freedom of speech' (Article 19) also serve to realize this constitutional imperative". Article 17(2) underscores the integrality and importance of a functional political party to democracy.
13. Article 17 (2) cluster of freedoms discussed above and the evolution of our jurisprudence provides a constitutional springboard for a robust and dynamic political environment, where citizens can profess their political choices, participate in political activity, have access to information so as to meaningfully oppose irrational and bad policies of the government and on the whole be active members of the political governance of the nation. The entire political architecture and the construct of constitutional freedoms rest on the existence of spirited and dynamic political parties. Political Parties are, therefore, the engines of democracy in any country. The importance of a political party and its functions is important to understand before Article 17(2) and its concomitant Articles can be fully appreciated.
14. Preamble to The Political Parties Order, 2002 ("Order") is illustrative and states that the need for a political party "is intended to create a political environment conducive to the promotion of a federal democratic system as enshrined in the Constitution...Political parties play a pivotal role in fostering a constitutional, federal democratic political culture and practice of democracy within the political parties will promote democratic governance in the country for sustaining democracy."
"Political party means an association of citizens or a combination or groups of such associations formed with a view to propagating or influencing political opinion and participating in elections for any elective public office or for membership of a legislative body".5 Cornelius CJ in Abul Ala Maudoodi vs. Govt of West Pakistan6 defined the expression 'political party" to mean: The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself.
The importance of political parties was highlighted by Saad Saood Jan, J, who had remained actively associated with the preparation of the draft of the 1973 Constitution 7 in Muhammad Nawaz Sharif Case8 in the following manner: The Constitution Committee of the National Assembly which was entrusted with the task of preparing the draft was of the opinion that the right of freedom of association as guaranteed in the earlier Constitutions of 1956 and 1962, qualified as it was with a number of restrictions, did not give sufficient protection to the political parties against the Executive which in the past had no hesitation in limiting or stifling their ordinary activities, particularly if these were directed against the party in the Government. It was felt that for the democracy to flourish in the country, it was essential that the political parties should be entirely unfettered except when they worked against the sovereignty and integrity of Pakistan. The experience of 1962 Constitution was before the Committee for despite the fact that it guaranteed freedom of association severest possible checks were placed on the otherwise legitimate functions of political parties. Some of the parties were even banned. Article 173 of the said Constitution stated that no candidate at an election could hold himself, inter alia, that he was a member of a particular party. This was tantamount to denying to the political parties a place in the political process in the country. In order to free the political parties from the strangle-hold of the Executive and permit the citizens freedom of thought and action in political matters it was decided by the Constitution Committee to make a separate and independent provision so far as the political parties were concerned.
In the same case, Saeeduzzaman Siddiqui J held that a 'political party' is a voluntary association of persons, formed with the object of propagating a definite political opinion/view on a matter of public importance having an ultimate aim to get into power seat of government through the process of election, in order to give effect to its programme.
Muhammed Haleem CJ in Benazir Bhutto case9 expressed: A political party has its significance in the context of the political system provided by the Constitution. Our Constitution is of the pattern of parliamentary democracy with a cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority. Bagehot called it 'a hyphen that joins, a buckle that fastens, the executive and legislature together'. It formulates the general policy of the Government and is collectively responsible to the Parliament for that. Apart from this general function of coordination and leadership it exercises actual executive and legislative functions.
Our constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self-government, but a system of control and limitation of government. A democratic party is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote.
Fundamentally democracy rests upon the idea of freedom.
Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a parliamentary democracy. They are important because the group victorious at a general election becomes the government. In a nutshall a parliamentary democracy depends for its success on the organization of political parties and its disciplined support of parliamentary majority is sine qua non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They thus provide leadership to public offices through the elections. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a "loyal opposition" as understood in parliamentary democracy. That is, they criticize policies and actions of the party in power. In this way the party in power is called on to justify its actions and is made responsible to the people.
In American system, 'a political party is a voluntary association, formed of the three will and unrestrained choice of those who compose it. No man is compelled by law to become a member of a political party, or after having become such, to remain a member. He may join such a party for whatever reason seems good to him, and may quit the party for any cause, or without cause. It has been said that political parties originated in the United States with the adoption of the Federal Constitution.'
Political parties are institutions of very great importance under our form of government. They are, in fact, the effective instrumentalities by which the will of the people may be made vocal, and the enactment of laws in accordance therewith made possible. So potent have they become in determining the measures and in administering the affairs of government that they are now regarded as inseparable from, if not essential to, a republican form of government.
The people have an inherent right to form, organize and operate political parties and to reorganize an old political party. This is included in the right of suffrage. It has been characterized as an inalienable right guaranteed by the Constitution.
Other supporting references are: Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad (PLD 2009 SC 107), "Jammu and Kashmir Tehrik Ammal Party, and 11 others v. The Azad State of Jammu and Kashmir and another" (PLD 1985 Azad J & K 95) and "All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others" (2012 CLC 714).
15. Political parties perform an important task in government. They bring people together to achieve control of the government, develop policies favorable to their interests or the groups that support them, and organize and persuade voters to elect their candidates to office. "At its simplest, a political party is an organization which allows like-minded people to work together to promote certain ideas and achieve certain goals. The co-operation and collaboration of people with different experiences, skills, knowledge and views within a political party is what enables that party to develop policies across the whole range of concerns which the national interest requires.10"
16. Existence of a political party is integral to a representative democracy. The advantages of having a political party are as follows; 11 i. Aggregate the many and diverse interests in society into reasonably clear political programmes; ii. Simplify electoral choices for citizens; Select candidates for election to Parliament and other bodies; Political parties nominate candidates for political office. They narrow the field from a multitude of choices to a manageable few credible candidates. This simplifies the voters' role and brings a certain order to what could be a chaotic electoral process; iii. Provide coherence to Parliamentary parties thereby facilitating government. Parties also bring order to the process of policymaking. As party members, individual politicians have a ready-made group of allies that will usually cooperate with their efforts to pass and implement legislation. In addition, party alliances close the gap between the legislative and executive branches. While separated by the Constitution, the existence of political parties narrows the distance between the branches and helps them work together; iv. Enable ordinary citizens to participate in the policy making process; Political parties inform and energize their members. They send out brochures, run media campaigns, knock on doors, and call voters on the phone. Individual candidates can do the same thing, but parties maintain elaborate networks of state and local offices that can be immediately pressed into the service of a candidate once the party nomination is secured. In addition, parties have fundraising apparatuses in place that simplify their candidates' ability to finance their campaigns; v. Help to provide a broad political education. The political parties educate public opinion through their propaganda. They publish newspapers, magazines, journals and other printed literature for popularizing their programmes and politics. Moreover, they have a host of speakers who explain and defend party programmes through Press and Platform. It is thus by means of Press and Platform that political parties impart education to the people. The political discussion by parties enables the voter to find the truth for himself. They raise issues, present facts, analyze them and present alternative solutions. The voter is gripped with the issues and can choose the solution that he considers best; vi. A political party acts as a brand, because it is associated with certain values, ideas or actions the public in general should know. In broad terms, what people who associate themselves with that brand, stand for; vii. By seeking to appeal to a wide range of voters political parties are able to act as a counterweight to special interest groups which could otherwise seek to manipulate government to their own benefit; viii. Parties can help citizens "who are on the losing side in elections and policy debates to accept defeat". They do this by encouraging an understanding that while their party may lose now, it may win on another occasion: this keeps politics "non-violent"; ix. Monitor the Opposing Party in Power. Parties also serve as critical watchdogs for the public. The adversarial relationship between the major parties ensures that the party out of power will keep a close eye on its opponent and notify the public of any wrongdoing or policy misstep; x. Formation of Public Opinion. Political parties formulate public opinion. In democracy, every adult enjoys the right to vote. Every citizen is to express his or her opinion at the time of election. They place clear alternatives before the people. Citizens rally round different political parties and public opinion is thus organized into definite channels. Political parties in this way provide an effective means for an organized expression of views on vital question of public policy; xi. Public Spiritedness. Political parties arouse popular interest in public affairs. It is due to this propaganda of political parties that every party system person in modern democratic times appears to be attached to the public life of his or her country; xii. Essential for Success of Parliamentary Democracy. Political parties make parliamentary democracy a success. The majority party forms the government and the minority parties form the opposition. The opposition criticizes the policy of the government and thereby exposes the weakness, inefficiency and drawbacks of the government. It seeks to defeat the party in power and tries to step into its shoes by winning over a majority in support of its policy. The opposition plays an important role in the sense that it checks the despotic or arbitrary tendency of the government and makes it respond to popular needs; xiii. Link between the Government and the People. The political party belonging to the majority group in the legislature serves to maintain a link between the government and the people. Its rank and file explain and popularize the policies, pursued by the government. The political organization maintains a continuous connection between the elected representatives and thus makes the government really representative. There is a greater harmony between the people and the government; xiv. Co-ordination in different Organs. Political parties serve to bring about a sort of co-ordination in the working of different organs of the government. They have played this role in the U.S.A. Where the government is based on the principle of 'separation of powers.' They act as a unifying force. It makes for a continuous policy and continuity in administration. The executive and the legislature co-operate and formulate a unified policy; xv. Political Parties create unity in the Nation. Every party has to formulate programme that can appeal to all the voters, or at least to a majority. The class differences, therefore, get reconciled;
17. Political parties are, therefore, a mechanism by which people of any background can be actively involved in the task of shaping policy and deciding how society should be governed. While they are not perfect organizations they are essential for the effective functioning of our democracy. Without the support of political parties it would be difficult for individuals, as legislators or as members of the Executive, to organize themselves effectively for the task of promoting the national interest.12 Importance of political parties in a modern constitutional State cannot be overemphasized, the working of entire governmental machinery depends upon them. The fact of the matter is that political democracy cannot be conceived of without political parties. They put into practice the public opinion which they have been instrumental in moulding and expressing. They help in the formulation and expression of a general will which is the core of democracy.
18. Party system implies an elective and a representative system of government. It is through this institution that the government can be made answerable to the people and therefore responsive to the needs of the general masses and the community as a whole rather than a section of it. The party system is based on the assumption that the people are rational beings, are able to exercise their franchise wisely and elect good government for themselves. Thus it provides a method for peaceful change of government without violent revolutions and coups. It provides the much desired flexibility in the government structure.
19. Political parties in order to be effective, require to engage in local political activity. In 2004 a Report by Alexandra Runswick13 argued that the engagement of local parties with the electorate is important because: a. personal canvassing by local parties meets "the electorate's basic desire to meet the people from the party they are being asked to vote for": this, she argues, leads to greater responsiveness and greater medium to long-term loyalty than canvassing by post or by national advertising; and b. a strategic campaign of reaching out to the community would enable parties to address their lack of diversity. Local parties will need to recruit, mentor and develop the skills of people from under-represented groups if those people are to be future council or parliamentary candidates and give the electorate a greater choice; and c. personal canvassing "forces both the electorate and members of political parties to ... see each other as fellow citizens", and provides a corrective to the cynicism of much media coverage of politics.
Similar views have been expressed by the august Supreme Court of Pakistan in Workers' Party Pakistan case14: Door-to-door campaigning is an effective means of establishing communication between the candidate and the voter. Such a campaign strategy demonstrates the candidate's "resolve, commitment and level of interest in his / her community". According to the petitioners, door-to- door campaigning is the cheapest and most convenient method of communication for persons of modest means. The provisions of Articles 17, 25, 51 and 218(3) of the Constitution which mandate a fair and level playing field and require that the interest of persons of modest means be protected.
20. In this background, Article 17(2) read with the cluster of other freedoms15 and the jurisprudence evolved over the years contemplates and mandates that a political party through its members can be involved in electioneering and canvassing. It can organize election campaigns and go on hustings to drum up support for their political party. Party leader(s), its members/ political workers are an integral constituent of a political party and enjoy the same freedom of movement, speech, association and information as the political party. The existence of a political party and its smooth functioning is a core constitutional value of liberal democracy. Other than reasonable restrictions in the interest of the sovereignty or integrity of Pakistan, any other restriction that abridges or in any manner impairs the free functioning of a political party or restricts the access of party leaders and members of the political party from reaching the electorate is a flagrant disregard of the cluster of fundamental rights that go to the core of a robust and working constitutional democracy.
21. While the august Supreme Court of Pakistan has empowered the ECP to take necessary steps to ensure free and fair elections in Workers' Party Pakistan case in the following manner; The Election Commission is empowered to check not just illegal actions relating to the election (violating the limits set for campaign finance, etc.) or corrupt practices (bribery, etc.) but is also empowered to review all election activities, including Jalsas, Jaloos, use of loudspeakers, etc. For their effects on the standards of 'fairness, justness and honesty' that elections are expected to meet. The Election Commission is also empowered to take pre-emptive measures to ensure that the spirit of democracy and 'fairness, justness and honesty' of elections is fully observed. The Election Commission is, therefore, directed to take all necessary steps to ensure the same.
This empowerment cannot overreach or override the constitutional protection under Articles 15, 16, 17(2) 19 and 19A of the Constitution. The impugned restriction imposed by ECP under Article 218(3) of the Constitution is based on an assumption that the public office holders of a political party may indulge in corrupt or illegal practice by utilizing public funds to promote their political party and unduly influence the electorate by making assurance at the expense of the public resources. This assumption cannot deprive the political party and its members or the voters of a constituency from campaigning and canvassing for the elections or bye-elections in any part of the country or the constituency. A political leader or political worker after the elections might hold a public office but this is because of his political affiliation with the political party and because of his own political character and identity, hence a political leader or a political worker cannot be stripped of his political character or identity and any step or action that denudes the political and constitutional character of a political party or a political worker, would offend the cluster of fundamental rights under Articles 15, 16, 17, 19 and 19A of the Constitution. Therefore the restriction imposed by Election Commission of Pakistan strikes at the root of the fundamental constitutional value of democracy and is, therefore, not permissible.
22. The only restriction under the law is in section 84 of the Act (other than restrictions provided under sections 83-A and 85 of the Act) which provides that no person shall convene, hold or attend any public meeting, and no person shall promote or join in any procession within the area of any constituency during a period of forty-eight hours ending at midnight following the conclusion of the poll for any election in that constituency. The apprehensions of the ECP are addressed under Sections 78, 79, 81, 82, 83, 92, 103 and 103AA of ROPA which provide for remedies in case the public office holders abuse their public position or public fund during electioneering. Special reference is made to sections 81(1)(e) and 83(1)(b) of the Act which are reproduced for reference: Section 81. Undue influence. A person is guilty of undue influence, if he-(1) (e) uses any official influence or governmental patronage; Section 83. Illegal practice (1) A person is guilty of illegal practice if he (b) obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate.
23. ECP can lay down guidelines to achieve fair and transparent elections and to avoid corrupt practices but cannot restrict political activity or make a political party dysfunctional by putting restrictions on the movement of its leaders or members because such a political freedom is grounded in fundamental rights guaranteed under the Constitution. The public office holders like the Prime Minister, Chief Minister, Federal Ministers, State Ministers and Advisors to the President also wear a political hat and belong to a political party. They are not in the service of Pakistan (see Article 260 of the Constitution) hence they are free to attend to their political obligations of running a political party and are fully entitled to the fundamental right guaranteed to them under Article 17(2) of the Constitution. A political party has to freely conduct electioneering, canvassing and the electoral campaign. This political activism is the foundation of modern parliamentary democracy and cannot be restricted by ECP. The issue of abuse of public office and public funds on a case to case basis can be easily addressed under ROPA, as discussed above, and the law will take its own course, when any such violation takes place. In an open political space and a vigilant media, such violations cannot remain hidden and are likely to be immediately highlighted by the opposing parties. Therefore, to restrict the party leaders, party workers or any public office holders namely: Prime Minister, Chairman/Deputy Chairman Senate, Speakers of Assemblies, Federal Minister, Ministers of State, Chief Minister, Provincial Ministers and Advisors to the Prime Minister and the Chief Minister and other public office holders, except the President, who is an emblem of unity of the Federation and is non-partisan, to visit the area of the constituency during electioneering offends the fundamental rights under Articles 15, 16, 17(2) 19 and 19A of the Constitution. Therefore, clauses (v) and (vi) of the above notifications including the impugned Notification, to the extent of this restriction (i.e., of not visiting the area of the constituency) is declared to be unconstitutional and illegal and therefore struck down. The remaining part of the said clauses and the Notifications as a whole, shall hold field and remain binding under the law. As the Code of Conduct is not under challenge before this Court, ECP shall reconsider para 30 of the Code of Conduct in the light of this judgment. This petition is allowed in the above terms.
24. Before parting with the judgment I wish to acknowledge with gratitude the assistance rendered by M/s. Shehzad Shaukat and Babar Sattar, learned Advocates/amici curiae and M/s. Qaisar Abbas and Mohsin Mumtaz, learned Civil Judges and Research Associates at the LHCRC.