The Supreme Court (SC) has said that a returning officer (RO) must scrutinise all nomination papers submitted to him in the best interests of justice and to uphold the fundamental right of any individual seeking to contest elections. Additionally, the purpose of providing facilities in the law and rules is to ensure that citizens are not deprived of their fundamental rights to contest elections freely.
"Returning Officers must remember that it is a fundamental right of an individual to contest elections, and if they sabotage an individual, not only do they rob the individual of their fundamental right, but they also rob the populace at large of voting for that individual, which is also a fundamental right protected by the Constitution," the top court observed.
The observations were made in an 11-page detailed judgment authored by Justice Irfan Saadat Khan regarding the acceptance of the nomination papers of a candidate, Shaukat Mahmood. Justice Irfan was part of a three-judge bench led by Justice Munib Akhtar, which heard the matter.
The detailed judgment noted that ROs are an integral part of the electoral process, and it is highly unbecoming for them to exercise the authority conferred upon them in a manner that sabotages it.
"We have carefully perused the one-page notification multiple times, and in any of those instances, have not come across any official "office hours."
The court said that if the ECP has fixed the last date for scrutiny of nomination papers as December 30, 2023, the Returning Officer has no right to determine the cut-off time on December 30, 2023, or what "office hours" he or she will operate until on the last date, i.e. December 30, 2023.
"In our view, until the clock strikes midnight on December 30, 2023, or whatever the last date of the scrutiny of nomination papers may be for any future election, the Returning Officer must scrutinise all nomination papers submitted to him, in the best interest of justice and to uphold the fundamental right of any individual to contest elections," the judgement read.
Justice Khan said, "Elections are the bedrock of a democracy, and as the 16th President of the United States of America, Abraham Lincoln, once said, elections belong to the people. Therefore, it is essential that those wishing to contest elections be facilitated as far as is legally permissible."
"It goes without saying that it is against democratic norms and principles to add technical bottlenecks in the way of any individual who is a citizen of this country trying to contest elections. In this backdrop, it is pertinent to say that electoral laws and rules cannot be used as an arbitrary filtering mechanism, dependent on the whims of a Returning Officer. Therefore, a Returning Officer should exercise the discretional powers available to him in a rational and meticulous manner."
Facilities for ensuring fundamental rights
In a detailed verdict on the petition filed by Pakistan Tehreek-e-Insaf (PTI) supporter Sanam Javaid Khan over the rejection of her nomination papers for submitting a joint account for election expenses instead of a singular account, the court said: "Purpose of providing such a facility can only be to ensure that the citizens are not deprived of their fundamental right, that is, to contest election freely."
The court noted that it is deeply rooted that if a rule goes beyond the rule-making power conferred by a statute or if a rule supplants any provision for which power has not been conferred, it becomes invalid.
It further said: "A delegated power to legislate by making rules cannot be exercised to bring into existence substantive rights, obligations or disabilities not contemplated by the provisions of the statute. The Commission, as a rule-making body, has no inherent power of its own to make rules but derives such power only from the Act, and so, it necessarily has to function within the purview of the ActAct."
The court determined that it appears that the stipulation in Rule 51 that a bank account identified by a potential candidate, so opened or dedicated, should not be a joint signatory account is inconsistent with the express provision of section 60(2)(b) of the Act. Since this rule travels beyond the ambit of the Act, it is illegal and cannot be given any effect, and as a result, the nomination papers could not be rejected.
"If, for any reason, the candidate cannot open an exclusive single signatory account before filing the nomination papers, the other option for him/her is to declare that he/she will use his/her existing account for the purpose of election expenses. This implies two things: firstly, the existing account may be single or joint, and secondly, a candidate is given the opportunity, if their account is joint, to have it converted into a single signatory account for the purpose of election expenses later on. This option seems to be for those candidates who, due to some exigencies including illness, imprisonment, etc., cannot open their exclusive single signatory bank account or convert their existing joint account to a single signatory account before filing nomination papers."
The court held that the purpose of providing such a facility can only be to ensure that the citizens are not deprived of their fundamental right, that is, to contest elections freely. Hence, any objection, if any, with regard to the joint bank account declared by the petitioner it could not be held to be a defect which was substantial in nature as the petitioner had the option, as stated above, to rectify it under proviso (ii) to sub-section (9) of section 62 of the Act, and convert it into single signatory account.
"This aspect of the matter escaped consideration of the High Court, and so,
we conclude that it misdirected itself while declining the petitioner's prayer."
On the objection that Javaid's signatures did not match and were not properly attested, the court noted that this scope of inquiry does not permit the RO to get the signature of the petitioner verified
from jail authorities, nor the non-verification or attestation of the nomination papers by the jail authorities is a condition precedent, nor was the difference in the candidate's signature a valid reason for rejecting the nomination papers, particularly when the petitioner/candidate filed an appeal admitting her signature, and then a constitutional petition.
"Thus, this ground could not be used as a basis to draw the inference that signatures were not genuine and to reject the nomination papers."