1994 PLP 409 (CLC)

"Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member." After its substitution by the Amending Ordinance of 1993, Section 12 (2) of the Act now reads as follows:‑‑ "(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain, duly signed by the candidate; (i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being elected as member; (ii) a declaration about his party affiliation if any; (iii) a declaration that an amount of loan, as may be prescribed, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid does not remain unpaid 'for more than one year from the due date; and (iv) a declaration that no loan, the amount of which may be prescribed, obtained by him, his spouse or dependent or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid."

7. By Section 9 of the Amending Ordinance, for clause (f) in Section 99 (1), the following has been substituted:‑‑ "(f) He is sagacious, righteous, non‑profligate, honest, Ameen and pays his debts specified in subsection (2) of Section 12." It would be observed that by the said amendment in Section 99, the change that has been brought about that the words, "and pays his debts specified in subsection (2) of section 12" have been added to the previously existing clause (f). On 19‑8‑1993, the Election Commissioner of Pakistan, with the approval of the President, make further amendments in the Representation of the People (Conduct of Election) Rules, 1977, and the said amendments inter prescribed the additional declaration on Oath by the candidate as follows:‑‑ "I hereby solemnly declare to. the best of my knowledge and belief that:‑‑ (i) no loan amounting to one million rupees or more obtained from any bank, financial institution, cooperative society or corporate body, in my own name or in the name of my spouse or dependent or business concern mainly owned by the aforesaid, remains unpaid for more than one year from the due date; and (ii) no loan amounting to one million rupees or more obtained by me, my spouse or dependent or a business concern mainly owned by mi~ or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid."

8. By another Ordinance promulgated by the President on 27‑8‑1993, being Ordinance NOXX of 1993. Representation of the People Act, 1976, was further amended by insertion of the following new subsections after section 12(2) of the Act.: "(2A) The declaration specified in clause (iv) of subsection (2) shall be,; made in respect of the loan written off after the twenty‑third day of' March, 1985. (2B) Where a candidate desires to make payment of any loan speed in clauses (iii) and (iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Officer shall allow such candidate to file nomination paper without the declarations specified in the aforesaid clauses.. (2C) Where a candidate pays back the loan in respect of which he has given an undertaking under subsection (2B), the earlier non‑payment or, writing off the loan shall not be deemed to be corrupt practice for the purpose of section 78. (2D) Where a candidate does not make payment of a loan in respect of which he has given an undertaking under subsection (2B) within the period specified therein, in addition to any penalty which may be levied upon him under any law for the time being in force, his name shall not be published in the list of contesting candidates required to be published by the Returning Officer under subsection (4) of section 16 nor shall his name appear in the ballot paper.

9. The said amending Ordinance XX of 1993 also added the following explanation after subsection (7) of Section 12 of the Act:‑‑ "Explanation‑‑For the purpose of this section, the expression "mainly owned" shall mean ownership of fifty‑one per cent or more shares in a business concern."

10. The ultimate consequence of the aforesaid amendments is that every candidate for the Elections to the National or Provincial Assemblies is ' required to give a declaration on Oath alongwith his nomination that loan 'amount in excess of rupees one million obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the a aforesaid, is not remained unpaid for more than one year form the due date and also a declaration that a loan of rupees one million or more had not been k written off or if it had been written off, it has since been paid. However, in case 'the candidate desires to make payment of any loan specified in clauses (iii) and (vi) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th day of September 1993, the Returning Officer shall allow such candidate to file nomination papers without the aforesaid declaration. In case, the candidate pays back the loan in respect of which he has given an undertaking, the earlier non‑payment or writing off the loan shall not be deemed to be a corrupt practice for the purpose of section 78 of the Act. In case, such candidate does root pay back the loan by 13th September 1993, his name shall neither be published in the list of contesting candidates nor will appear in the ballot paper.

11. Mr. Muhammad Ali Sayeed has raised the following contentions in support of the proposition that the aforesaid amendments are ultra vires the Constitution:‑‑ (a) By the aforesaid amendments, a new disqualification has been added to the list of the disqualification contained in the Constitution and this is not permissible in view of the provisions of clause (p) of Article 63(1) of the Constitution; (b) In any case, the said restriction on the candidates places an embargo on their right under Article 17(2) of the Constitution, and (c) Unless the amount of loan is adjudicated by a prescribed forum under any applicable law, restriction on the candidates cannot be placed restraining them from contesting the election on the ground that according to any bank or other specified institution any loan is payable by them. In support of his contention, Mr. Muhammad Ali Sayeed referred to Articles 62 and 63 of the Constitution submitting that Article 62 prescribes the "qualifications" for membership of the Parliament and Article 63 enumerates the "disqualification; for membership of the Parliament. According to learned counsel, under clause (i) of Article 62, additional qualifications can be prescribed by Act of the Parliament subject to the rider that such additional qualifications do not contravene, any provision of the Constitution, whereas, under Article 63, which prescribes the disqualification for the membership, no additional disqualification can be prescribed by Act of the Parliament as no parallel provision like clause (i) of Article 62 is to be found in Article

63. According to learned counsel, clause (p) of Article 63 (1) is worded differently and it provides that, "he is for the time being disqualified from being elected or chosen as member of the Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force". The arguments of Mr. Muhammad Ali Sayeed was that the words "under any law for the time being in force" restricted the additional disqualifications which were already prescribed by other laws which were already in force at the time the Constitution was promulgated and the aforesaid words do not permit additional disqualification to be prescribed in future. Learned counsel, for this contention, relied upon the following Judgments: (i) Amro Jan v. Amir Muhammad 1972 SCMR 639. (ii) Mehtab Khan v. Rehabilitation Commissioner PLD 1973 SC 451. (iii) Stone v. Wood (1971) 2KB 885.

12. Mr. Muhammad Ali Sayeed has laid great emphasis on the distinction between "qualification" and "disqualification". According to him, there are separate Articles with Article 62 dealing with "qualification" and Article 63 dealing with "disqualifications for membership of the Parliament. However, we find that the distinction is not clear as pointed out by learned counsel. As pointed out by Mr. Muhammad Sardar Khan, learned Attorney‑General for Pakistan, in Article 62, which has its marginal heading as "qualifications for membership of Majlis‑e‑Shoora", the proviso in the said Article itself refers to the so‑called "qualifications" as "disqualifications". Proviso in Article 62 reads as follows:‑‑ "Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non‑Muslim, but such a person shall have good moral reputation." However, for the purpose of the present Constitutional Petition, it is not necessary to interpret the words "under any law for the time being in force" contained in clause (p) of Article 63‑ (1), as in our view, the amendment that has been made in section 99 (1) (f) of the Representation of People Act, which is identical to Article 62 (f) of the Constitution, adds the words "and pays his debts specified in subsection (2) of Section 12" of the Act of 1976 after the qualifications that he is sagacious, righteous, non‑profligate, honest and Ameen. We consider the words "pays his debts" as a qualification rather than a disqualification. According to Mr. Muhammad Ali Sayeed himself, under clause (i) . of Article 62, an additional qualification can be prescribed by law, subject of course to the rider that such additional qualification does not contravene any provision of the Constitution. We are, A therefore, of the view that the amendments regarding payment of loans and the declarations required to be given in that behalf as a condition for taking part in the elections could validly be made under clause (i) of Article 62 of the Constitution. .

13. Second contention of learned counsel for the petitioners was that, in any case, the aforesaid amendments are in direct conflict with Article 17(2) of the Constitution, which inter alia, provides that every. citizen, not being in the service of Pakistan, shall have the right to form or be member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. According to Mr. Muhammad Ali Sayeed, the right to form a political party, be a member of a political party and to contest election as a member of a political party are rights which cannot be taken away except where reasonable restrictions are imposed by law in the interest of the sovereignty or integrity of Pakistan. According to Mr. Muhammad Ali Sayeed, petitioners do not deny that they have taken loans but it is yet to be determined as to what are the amounts due from the petitioners to the banks or other institutions. According to learned counsel, penal interest and other illegal (sic) must have been changed made and as such the figures given by such institutions cannot be accepted as correct. In any case, according to learned counsel, even if loans in excess of rupees one million are due from the petitioner to such institutions, in view of Article 17(2) of the Constitution, petitioners and other candidates inspiring for membership of the Assemblies cannot be restrained from contesting the elections. According to learned counsel, the amendments are, therefore, unconstitutional and have to be struck down in view of Article 8 of the Constitution, which prescribes that any law, in so far at it it incnn6stent with the Fundamental Rights conferred by, Chapter 1 of Part II of the Constitution shall, to the extent of inconsistency, be void. Support was sought by Mr. Muhammad Ali Sayeed for his contention from two cases, that is Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) and Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).

14. We find no merit in the contention that the aforesaid amendments are unconstitutional being violative of Article 17(2) of the Constitution. 15. ‑ The right to form and be a member of a political party and the right to contest elections are very valuable rights and the same are spelt out from Article 17(2) itself. However, Article 17(2) is to be read with Article 62 and other provisions of the Constitution. Article 62 provides certain qualifications or disqualifications for members of the Parliament. A candidate who is not qualified under Article 62 cannot rely upon Article 17(2) of the Constitution that he has an unfettered right to contest election. For instance, Article 62(b) provides that candidate must be at least 25 years of age in case of the National or Provincial Assembly and 30 years of age in case of membership of the Senate. A candidate, who is younger in age, cannot obviously rely upon Article 17(2) for the proposition that he has an unfettered right to take part in the election. Then clause (i) of Article 62 gives the power to the Parliament to add other qualifications for being a candidate for the seat in the Parliament. If the contention of Mr. Muhammad Ali Sayeed is accepted, then no additional qualification can be prescribed, as according to him any other qualifications will come into conflict with Article 17(2) of the Constitution. In our view, additional qualifications can be laid down by the Parliament, if such additional qualifications do not come into conflict with the provisions of the Constitution. Article 2A is now a substantive part of the Constitution which mean that the Objectives Resolution is an integral part of the Constitution. It is mentioned in the Objectives Resolution and also in the preamble to the Constitution that sovereignty over the entire Universe belongs to Allah alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by him is a sacred trust and that in Pakistan the State shall exercise its power and authority through the chosen representatives of the people and where the principles of democracy, freedom, quality, tolerance and social justice as enunciated by Islam shall be fully observed. The chosen representatives have to discharge the sacred trust in accordance with the Constitution and in an Islamic democracy, a person who cannot discharge these responsibilities, should not be allowed to contest elections. It is for this reason that such qualifications have‑been prescribed by Article 62 which allow only those persons to contest election and become members of the Parliament who have the requisite qualities for discharging their responsibilities as envisaged by the Constitution including the Objectives Resolution.

16. Reference may be made here to a recent judgment of the Supreme Court of Pakistan in Civil Appeal No.202‑K of 1991 (Sardar Muhammad Muqeem Khoso v. President of Pakistan). In para. 36 of the judgment of Mr. Justice Ajmal Mian, it has been observed as follows:‑‑ "I may point out that under the Objectives Resolution, which has now become a substantial part of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) by virtue of Article 2‑A thereof, sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him, is a part of a sacred trust. Any abuse of position on the part of a chosen representative will amount to breach of the above sacred trust entailing heavenly and worldly punishment. The aforesaid Acts IV and V of 1977 and the President Order 16 of 1977 and the Order (i.e. P.0.17 of 1977) were designed and intended to curb and discourage the tendency on the part of public representatives to exploit their position as such for their personal gains. Unfortunately the above statutory provisions, which are for public good in order to ensure unadulterated and in corrupt democracy, have not been effectively enforced and given effect, with the result that some of the public representatives become purchasable commodity and they change loyalty for monetary and other gainful considerations and thereby commit breach of the mandate of their voters and the political party to which they belong. This betrayal of trust is now popularly known as horse‑trading. This cancerous disease in the polity of our country is, contributing a lot in destabilizing the democratic institutions and thereby adversely affecting the economic growth of the country besides affecting the good name of the country adversely in the comity of nations. The above tendency is to be checked and discouraged at all levels." It may be added that democracy has not flourished in the country as was expected and part of the blame for this melody lies upon some of the chosen representatives of the people who sat in the Parliament in the past. The common man has suffered and continues to suffer on account of the institutions in the country not discharging their responsibilities in accordance with their Constitutional and legal mandates.

17. The Court also takes judicial notice of the fact that loans and facilities from financial institutions running into billions of rupees have been taken by influential persons and their family members, directly or indirectly, including some of our chosen representatives. It is also common knowledge that a substantial part of such loans has remained unpaid for years together making our poor country more poor: On account of big loans being advanced to influential families, such families become more rich and more powerful. On account of such big loans being diverted to‑very small number of families which are influential, other deserving parties suffer on account of facilities not being available to them. Bad and written‑off loans‑‑and confined to few influential families‑‑adversely affected the economy of our country and, as observed, it is the common man .who ultimately suffers.

18. In our view, therefore, by making a law that one of the qualifications of the candidate would be that he pays loans is not unconstitutional. In fact, C such law has been made in accordance with the letter and spirit of the Constitution that chosen representatives are such who can discharge their trust in a manner expected from them by the Constitution.

19. Even otherwise, according to us, this law is not hit by Article 17(2) of the Constitution. On account of huge loans running into billions of rupees which have not been re‑paid together with other reasons, the economy of Pakistan presents a very dismal picture. The law that has been made, therefore, is covered by the proviso in Article 17(2) which is "any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan". We are of the view that the impugned amendments are not unconstitutional. On the other hand, the introduction of such law is a step in the right direction, that is, getting such people in the Parliament as is contemplated by the Constitution.

20. The last contention of Mr. Muhammad Ali Sayeed was that unless there is an adjudication of the exact liability, the petitioners and other candidates cannot be penalized on the ground that they had taken some loans from the financial institution and are deprived from contesting elections to the Assemblies. We find no merit in this contention also. The words "debt due" have not been used in the amendments. The words used are loan obtained from any financial institution and remaining unpaid for more than one year from the due date. The Amending law is not bad as it does not require that there should first be an adjudication of the liability and one it is found by a Judicial or quasi‑Judicial forum that certain amount is due, only then the candidate be restrained from taking part in the election in case he does not pay the amount found due. For the aforesaid reasons, this petition was dismissed in limine by our short order passed earlier at the of the submissions of the learned counsel and the learned Attorney‑General. AA./A‑1404/K Petition dismissed.