Disqualification of candidate

2024 CLC 1558 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.63Constitution of Pakistan, Art. 63 (1)(d)(e)(k) & (m)General elections for seat of Provincial AssemblyDisqualification of candidateOffice of profitNomination papers, acceptance of

Appellant / candidate contented that respondent / candidate was Chairman TEVTA and without completion of two years he could not contest elections

Plea raised by respondent / candidate was that he was not holding office for profit

Validity

Any person was qualified under Art. 63 (1)(m) of the Constitution, who was not in service of Pakistan, if he had held an office which was not whole time office remunerated either by salary or by fee

If Chairman TEVTA was not drawing any salary or fee, he could contest elections

Respondent / candidate was appointed Chairman TEVTA on probono basis and was not holding office of profit i.e. not a whole time office remunerated either by salary or kind as mentioned under Art. 63 (1)(m) of the Constitution

Respondent / candidate was not disqualified under Art.63(1)(d)(e)(k) of the Constitution to contest election

High Court declined to interfere in the order passed by Returning Officer accepting nomination papers of respondent / candidate

Appeal was dismissed, in circumstances.

2024 MLD 343 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 35(1)(b)Sindh Local Councils (Election) Rules, 2015, Rr. 16 & 18Qualification of candidateDeterminationPetitioner contested the elections of member of Municipal Committee

Returning Officer rejected nomination papers of petitioner on ground that he had not attained the age of 21 by the last date of filing of the nomination papers

Validity

No valid contention was raised by the petitioner regarding his age being incorrectly noted, rather the same was admitted

Section 35(1)(b) of the Sindh Local Government Act, 2013, in clear terms required that a candidate be at least twenty one years by the final date of filing of nomination papers (15.06.2022) which the petitioner failed to comply with

B-Form of the petitioner issued by the NADRA on 15.02.2018 which was filed with the objections of the interveners/respondents before the Appellate Authority showed the date of birth of the petitioner to be 23.06.2003 while his Birth Certificate issued on 30.08.2019 showed his date of birth to be 23.06.2001, a difference of two whole years

Passport provided by the petitioner was also issued on 01.12.2020 whereas the CNIC of the petitioner which was produced with the objections of the interveners before the Appellate Authority showed his date of birth as 23.06.2001 and was issued in the year 2020

Earliest acceptable entry of the date of birth of the petitioner was in the B-Form which was issued in 2018

As such, the petitioner's own version regarding his age being 21 by the time he took oath or even at the time of appeal was contradicted by those documents

Not only that, since the petitioner provided two different date of births, the decision of the Appellate Authority became a finding of fact which could not be disturbed by High Court while exercising its Constitutional jurisdiction

Constitutional petitions were dismissed, in circumstances.

2022 CLC 1507 PESHAWAR-HIGH-COURT Judicial Precedent

Rr.2(P), 9, 62 & 66Constitution of Pakistan, Art. 199Constitutional petitionQualification of candidateDeterminationPetitioner contested election for the seat of General Councilor and secured second highest votesElection Commission rejected nomination papers of petitioner on ground of lack of qualificationValidity

While determining qualification, Election Commission did not consider powers as provided in Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021

Order of Election Commission was mainly based upon decision rendered by High Court in a Constitutional petition which was dismissed much earlier to the polling day

Neither nomination papers of petitioner were rejected nor any appeal under law was filed

Election Commission could not exercise all powers of Election Tribunal as in exercising such powers the Commission was to see illegalities or violation of provisions of Election Act, 2017, which had affected result of polls either at one or more polling stations or in the whole constituency and in such case the Commission was to order for repoll and order in question did not reflect any such observation

Election Commission was not competent to declare respondent as returned candidate

Election Commission was not empowered to disqualify a candidate after completion of election process

Election Commission could not exercise all powers as provided in Rr.62 & 55 of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021

Powers conferred upon Election Commission under R.9 of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021, were restricted within the ambit of R.9(1) of Khyber Pakhtunkhwa Local Government (Conduct of Election) Rules, 2021

High Court set aside the order of the Election Commission

Constitutional petition was allowed accordingly.

2020 CLC 839 ISLAMABAD Judicial Precedent

Ss. 167 & 173Constitution of Pakistan, Arts. 62(1)(f) & 199Constitutional petitionQuo warranto, writ ofDisqualification of candidateMis-statementConcurrent jurisdictionPetitioner was voter and had sought disqualification of respondent who was notified as Member of Provincial AssemblyPlea raised by petitioner was that he made mis-declaration regarding his educational qualificationValidity

Conduct of elections under the Constitution was sole responsibility of Election Commission of Pakistan hence all elections were conducted by such Constitutional body

Election Commission of Pakistan as Constitutional body fell within the definition of "person carrying on affairs of Federation" for the purposes of Art. 199 of Constitution

Election Commission of Pakistan had its principal establishment at Islamabad with regional offices in four Provinces

Notification of a returned candidate was issued by principal office of Election Commission of Pakistan and record as well as affairs of all elected representatives whether of parliament (National Assembly and Senate) or provincial assemblies were regulated by Election Commission of Pakistan from Islamabad

Islamabad Capital Territory in such matters had concurrent jurisdiction with provincial High Court

High Court declared respondent as disqualified from holding position of Member Provincial Assembly under Art. 62(1)(f) of Constitution, as he wrongfully mentioned his qualification as Bachelors of Business Administration and made false declaration

High Court directed Election Commission of Pakistan to de-notify respondent as successful candidate

Constitutional petition was allowed in circumstances.

2016 YLR 1625 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 27Constitution of Pakistan, Art. 199Constitutional petitionMaintainabilityDisqualification of candidate

Contention of petitioner was that at the time of filing of nomination papers, respondent was underage as his date of birth as per NADRA record was 25-09-1991

Respondent's plea was that petitioner should seek alternate remedy of filing election petition

Validity

Admittedly respondent had been declared as returned candidate but his result had not so far been notified in the official gazette by Election Commission

Remedy of filing election petition was not available to the petitioner

No doubt petitioner had not availed the remedy of appeal before Appellate Authority against the acceptance of nomination papers of respondent but such fact did not create any hurdle in the way of petitioner in invoking the Constitutional jurisdiction of High Court

If statutory remedy available under the law was considered inadequate and inefficacious, and relief as claimed could not be granted to the aggrieved person, then constitutional petition, was maintainable particularly when controversy between parties could be resolved from the available record.

2013 SCMR 1328 SUPREME-COURT Judicial Precedent

Ss. 12, 14 & 99Constitution of Pakistan, Arts. 13, 62 & 185(3)Disqualification of candidateDouble jeopardy, principle ofApplicability

Candidate was declared to be disqualified in previous elections on the ground of holding fake and bogus educational degree

Returning Officer on the basis of previous disqualification, again declared the candidate disqualified

Plea raised by candidate was that disqualification on the basis of previous decision of Election Tribunal as well as Supreme Court would amount to double jeopardy, which was not permissible under the Constitution

Validity

Disqualification of candidate was perpetual and not time related

Candidate had submitted fake and bogus documents in order to become Member of Parliament and he had not only played fraud on electors of his constituency but he had also cheated Returning Officer to believe him to be graduate on the basis of fake and forged documents and such person could not be trusted to lead nation as a legislator

Candidate failed to meet the criteria set out for proposed candidates under Art.62(d)(f) of the Constitution and S.99(1)(d)(e)(f) & (g) of Representation of the People Act, 1976

High Court had rightly accepted Constitutional petition and rejected nomination papers of the candidate

Supreme Court declined to interfere in the orders passed by High Court

Petition was dismissed in circumstances.

2010 GBLR 305 SUPREME-APPELATE-COURT-GILGIT Judicial Precedent

Arts.37 (2) (g) & 60 (13)ElectionDisqualification of candidateBank defaulterDeterminationAggrieved personScopeFinancial institution, locus standi of

Nomination papers of respondents were rejected by Returning Officer on the basis of record provided by financial institution

Chief Court set aside the order passed by Returning Officer and declared the respondents to be qualified to contest the election

Financial institution assailed the order passed by Chief Court on the plea of respondents being bank defaulter

Validity

Objection regarding disqualification of respondents as candidates in election on the basis of their financial liability was not raised either by their opposing candidate or any other person from their respective constituency, therefore, financial institution had no right under election laws to challenge their candidature

Any person who was not directly or indirectly affected by any order passed by an authority, was not an aggrieved person to have any right or locus standi to challenge such order

Financial liability of a person of public organization might provide a ground for disqualification of such person to hold public office if that person was adjudicated "defaulter" under law and in absence of such evidence of default the declaration regarding qualification of that person to contest election by a court might not infringe right of financial institution / organization to avail the remedy for recovery of loan from defaulters

Financial institution on the basis of financial liability of respondents might have no personal right to raise objection before the election authorities regarding their qualification to become candidates in election and were not aggrieved person against order of acceptance of nomination papers of respondents

Supreme Appellate Court declined to interfere in the order passed by Chief Court

Leave to appeal was refused.

2010 CLC 151 NORTHERN AREAS CHIEF COURT Judicial Precedent

Arts. 37(2)(b) & 71(2)Writ petitionElection to AssemblyDisqualification of candidate

Under provisions of Art.37(2)(b) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 a candidate would be disqualified to contest the election to the Assembly, if he had been adjudged by competent forum to be insolvent and he had not discharged himself from insolvency; and a period of ten years had not elapsed since his being adjudged as insolvent

Said Article had clearly envisaged disqualification of an adjudged insolvent from contesting the election for the Assembly and none of the petitioners in the present case had been adjudged to be insolvent by a competent forum and had been declared defaulter by any competent authority

Impugned rejection orders were based merely on lists sent by the financial institutions to the election authorities which were without jurisdiction and void ab initio and were set aside

Petitioners were allowed to contest elections, if they were otherwise qualified.

2009 MLD 1214 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 152(1)Disqualification of candidateElection of Nazim and Naib-Nazim

Election petition was moved against the returned candidate on the ground that one of the returned candidates was not possessed of the requisite educational qualification and the certificate appended by him with nomination papers was forged

No evidence whatsoever was available on record about the notoriety of the disqualification of said candidate

Election petition, in the present case, was accepted

Challenge thrown to qualification of appellant was reported in the Press, the voters thus had thrown away their votes despite knowledge

Mere fact that a news item was published regarding the said objection would be of no avail when admittedly the objection was not entertained and was turned down by the Returning Officer

Appeal was accepted and fresh elections in the constituency were ordered to be conducted to the said seats, in circumstances.

2008 CLC 1422 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 99(1)(F)Conduct of General Election Order (7 of 2002), Art.8-AConstitution of Pakistan (1973), Art.62(d)(F), 63(a) & 199Constitutional petitionDisqualification of candidate

Nomination papers submitted by respondent for candidature for the seats of Provincial and National Assembly, had been accepted by Returning Officer despite objection raised by the petitioner as to respondent's disqualification due to his lacking required educational qualification

Appeal filed by the petitioner against acceptance of Nomination papers of respondent having been dismissed by Election Tribunal, petitioner had filed constitutional petition against order of Election Tribunal

Validity

Respondent appeared in B.A. Annual Examination in the year 2002 and having been involved in a case of unfair means, was disqualified for a period of three years, he was, in circumstances not eligible to appear in any examination earlier than .year 2005

Respondent, however managed to appear in First Annual Examination 2003 by adopting deceitful means as he changed the spelling of his name

Fraud and forgery committed by the respondent was patent on the face of the record, which did not need any inquiry and investigation

Respondent, by no stretch of imagination, could be termed as sagacious, righteous, non-profligate, honest and ameen as provided in Art.62(1) of the Constitution, as well as S.99(1)(F) of Representation of the People Act, 1976 and could not be allowed to contest election

Even otherwise, the degree procured by respondent on the basis of examination in the year 2003, had since been cancelled by the University

Accepting petition filed by the petitioner, order of the Election Tribunal was set aside by High Court and it was declared that respondent was not qualified to contest the election due to lack of educational qualification etc., as provided in terms of S.99(1)(F) of Representation of the People Act, 1976.