' The petitioner in this Constitution petition has prayed that holding of National and Provincial Assemblies election to be held on 6th and 9th October, 1993 respectively without first conducting accountability of both major parties and concluding the pending references and the fresh references to be filed, may be declared unconstitutional and against the interest of the country and its citizens. The petitioner has also sought a direction to the Federation to first conduct accountability of both Mian Muhammad Nawaz Sharif Government and earlier Pakistan People's Party Government and to stay the election to the National and Provincial Assemblies during pendency of the petition.
2. The aforenoted declaration and direction are sought with the assertions that both the major parties were and are in race; both are playing with the nation and raising slogans but when they form the Government, they start looting the national wealth, advance favouritism to the relatives and their party members in every field of life, in service matters, in distribution of national wealth through fraudulent means. It is asserted that all these matters are before the nation and the general public knows it very well and that Pakistan People's Party formed Government in the year 1988 remained in power till 1990; references were filed against Mohtrama Benazir Bhutto and other members of the People's Party on which almost 400 crores of rupees were spent by the ex- President, Ghulam Ishaque Khan and Mian Muhammad Nawaz Sharif and that some of these references are still pending. It is further averred that in 1990 Mian Muhammad Nawaz Sharif fromed the Government; he and his Cabinet members used/spent and looted the national wealth and its sources in a merciless manner; he dissolved the Assembly and again started campaign but no accountability has been conducted.
3. The petitioner with these averments asserts that there is no justification to hold the fresh election without accountability of both the major parties as again and again both the parties come in power and spend, use and collect wealth of the country according to their own whims and wish. It is also asserted that these parties have blocked the chances of sincere and partiotic citizens who want to serve the nation but the members of both the parties who have looted crores of rupees participate in the election considering it a trade, and that after winning election will not allow the patriots to come forward and form the Government and work honestly in the best interest of citizens of Pakistan. It is further averred that nation can wait for 3/4 months more but they want accountability of both major parties before the election and that all the members who had misappropriated wealth of the country should be declared disqualified for ever so that new- comers and honest persons should come forward to work for the betterment of the country.
4. The case of the petitioner in nutshell is that proceedings for accountability be initiated and completed first and those found suffering from disqualification on account of misconduct be disqualified from contesting the election and pending completion of process of accountability, the election to the National Assembly and Provincial Assemblies scheduled to be held on 6th and 9th October, 1993 respectively be stayed.
5. The petition came up for hearing yesterday when time was sought to prepare the brief further and to cite the law in support of the plea that without conducting the accountability of both the major political parties and during the pendency of the references against the members of Pakistan People's Party and Mohtaram Banazir Bhutto, the election cannot be legally held.
6. I have heard the petitioner at length again today. He has repeated the averments contained in the petition and argued that according to Article 5 of the Constitution of Islamic Republic of Pakistan loyalty to State and obedience to Constitution and law is inviolable obligation of every citizen and as such all those citizens who have squandered the public money should not be allowed to participate in the election and, thus, to come into power so as to again indulge in the loot. He also referred to section 99 of the Representation of the People Act, 1976 (Act LXXXV of 1976) which provides for disqualifications of the persons to be elected or chosen as members of Assembly. The petitioner is an Advocate of some standing of this Court and he as such is supposed to know the law in force in the country as well as the intent and scope of power vesting in this Court under Article 199 of the Constitution. It was not denied by the petitioner that under extraordinary Constitutional jurisdiction of this Court, a petitioner can seek a direction to do anything which the Authorities are required by law to do or refrain from doing anything which the statutory functionaries are not permitted by law to do or can seek enforcement of a right vesting in him. It was also not denied that this Court in exercise of its Constitutional jurisdiction cannot direct the Federation or the Province to make, promulgate and enforce a particular law. It is solely the domain of the Legislature to frame, promulgate or enforce a law on a particular subject. The petitioner conceded during the arguments that the law under which references were filed against the then Prime Minister Mohtrama Benazir Bhutto and the members of her Cabinet do not contain any provision rendering them disqualified to participate in the coming general election. The fresh references which according to the petitioner were prepared but have not yet been filed before the Tribunals are inconsequential in any way. It will, therefore, be seen that the petitioner has not been able to point out any law by enforcing which accountability of the major political parties is being sought.
7. It will be pertinent to note that accountability of the former members of Assemblies can only be conducted in accordance with law, if any, existing in the Statute book. The disreputed laws like PRODA and ABDO are no longer in force and disqualification of the members of previous Assemblies cannot be summarily obtained within a few months as is being desired by the petitioner. Even if any material exists against a former member, proceedings will have to be initiated under the existing laws and the proof of alleged misconduct would require recording of evidence and holding of detailed inquiry which proceedings cannot be completed before the date of election. Such matters are not even allowed to be concluded by the parties themselves through adoption of various delaying tactics and devices. These measures, if now adopted, will result in delaying the election indefinitely. The proposal that law providing for disqualification of members of the Assemblies through summary proceedings, may now be promulgated does not seem feasible as enactment of such a law may fall outside the domain and manadate of the Care-taker Government. The mandate of the Constitution contained in Article 48 is that general election to the Assemblies is to be held on a date not later than 90 days from the date of dissolution of Assembly.
This mandate cannot be defeated by raising the bogy of accountability first and the election later.
The postponement of general election indefinitely will not be in the interest of nation and any citizen having the interest of nation nearer to his heart cannot even think of postponement of general election. The purpose of weeding out the persons who have incurred disqualification from being elected as members of the Assembly on account of their misconduct can be achieved under the Representation of the People Act, 1976. Section 99 of the Act provides for qualifications and disqualifications; some of which are as under:-- Qualifications:
(a) he is a citizen of Pakistan;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (0 he is sagacious, righteous and non-profligate moral turpitude or for giving false evidence; Disqualifications:
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan.
It will, therefore, be seen that a person who is seeking election to an Assembly if is not possessed of the aforeasid qualifications or has suffered disqualifications provided for in said section including those enumerated above, can be kept out of the election process by raising objection to his candidature/nomination. Section 14. of the Representation of the People Act, 1976 gives right to the candidates, their election agents, the proposers and seconders and one other person authorised in this behalf by each candidate to file objection against the nomination of another candidate and to attend the scrutiny of nomination papers. Thus, only a candidate has right under the Representation of the People Act to point out that the other candidate who has filed nomination papers and is seeking election to an Assembly does not possess the requisite qualifications or suffers from any of the disqualifications provided for in section 99 of the Act.##TED## It is argued that members of the political parties do not object to each other's candidature on account of tacit understanding and as such the purpose of providing qualifications and disqualifications has remained unfulfilled and unachieved. It is pertinent to note that a provision was added by Ordinance V of 1990 conferring right on an elector to file objection to the nomination and also to attend the scrutiny of nomination papers and to seek rejection of a nomination paper of a candidate who is not possessed of the prescribed qualifications or who suffers from any of the disqualification but that provision is no longer part of section 14 of the Act LXXV of 1976 as the aforesaid Ordinance was allowed to lapse and was not made an Act of the Parliament. The best that can be asked by the citizens and by the political parties is that the said provision conferring right of an elector to file objection to a nomination paper be added by promulgating an Ordinance by the Care-taker Government on the lines of Ordinance V of 1990. In any case, postponement of general election on the plea of accountability cannot be sought. In my view, entertainment of such a plea would amount to violating the mandate of the Constitution.
The bogy of accountability as raised by the petitioner in this petition cannot be considered to be bona fide as it appeared that the petition had been filed only to gain publicity as even the political parties were not claiming accountability through summary procedure. The so-called accountability, if initiated, would result in indefinite postponement of election which would not be in the interest of the country. This petition is misconceived and is dismissed in limine.