IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
Constitution Petitions No.39 & 90 of 2011
Ch. Nasir Iqbal & others (in Const.P.39)
Imran Khan, Chairman, PTI etc (in Const.P.90)
Petitioner(s)
VERSUS
Federation of Pakistan, thr. Secretary Law & others (in Const.P.39)
Federation of Pakistan (in Const.P.90)
Respondent(s)
For the Petitioner(s) :
(In Const.P.39/2011) Mian Abdul Rauf, ASC
(In Const.P.90/2011) Nemo
On Court’s Notice
: Mr. Ifran Qadir, Attorney General for Pakistan
Mr. Dil Muhammad Khan Alizai, DAG
For the ECP : Mr. Muhammad Munir Paracha, ASC
Syed Sher Afghan, DG (Elections)
For M/O Overseas & OPF : Raja Muhammad Farooq, ASC
Dr. M. Sarwar Zahid, Chief
Mr. Fayyaz Ahmed Malik. Deputy Chief
Mr. Khurram Shiraz, L.O. OPF
For the NADRA : Mr. Afnan Karim Kundi, ASC
Mr. Tariq Malik, Chairman
Mr. Saqib Jamal, Sr. LO
For M/O Foreign Affairs : Mr. Iftikhar Anjum, DG, Overseas Pakistanis
For M/O Finance : Mr. Sadaqat Ahmed, SO (L)
Const.P.39 & 90/11 2
Dates of Hearing : 26 & 29.04.2013
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. — The listed
Constitution Petitions were disposed of vide short order dated
29.04.2013 with the observations that let the ECP make all possible
efforts to achieve the object, so the expatriates may also participate in
the General Elections in exercise of their fundamental rights conferred
under Article 17(2) of the Constitution of the Islamic Republic of
Pakistan, 1973.
2. In the meanwhile as it has been noted above, the Election
Commission of Pakistan (ECP) took up the matter with the concerned
Government Authorities and ultimately the President of Pakistan, in
exercise of the powers conferred by clause (1) of Article 89 of the
Constitution of the Islamic Republic of Pakistan, promulgated the
Election Laws (Amendment) Ordinance, 2013 [Ordinance No. IV of
2013], published in the Extraordinary Official Gazette on 09.05.2013,
to amend the Representation of the People Act, 1976 (LXXXV of 1976)
[ROPA] as well as the Electoral Rolls Act, 1974 (XXI of 1974) [ERA].
By means of section 2 of the Ordinance, 2013, Chapter V-B titled “Out
of Country Voting”, containing sections 47-B to 47-K, was inserted in
ROPA. The said provisions are reproduced hereinbelow: -
“Chapter V-B
Out of country Voting
47-B. Polling Station.- (1) the Commission, at least fourteen
days before the day fixed for poll abroad, shall establish polling
stations with as many polling booths as may be necessary in the
premises of an Embassy, a Mission or a Consulate or any other
public place notified by the Embassy, Mission or Consulate, in
the countries as may be determined by it;
Const.P.39 & 90/11 3
Provided that the Ministry of Foreign Affairs have obtained
consent of such host country for establishment of the polling
stations.
47-C. Appointment of Presiding Officers, etc._ The
Commission from amongst the officers of the Federal
Government or Autonomous Bodies under the Federal
Government, preferably posted abroad, shall appoint as many
Presiding Officers as the number of polling stations and as many
Assistant Presiding Officers as the number of polling booths
established in an Embassy, Mission, Consulate or public place
notified for the purpose.
47-D. Registration of Pakistani citizens living abroad.- (1)
A Pakistani who lives abroad and is in possession of National
Identity Card for Overseas Pakistanis issued under the National
Database and Registration Authority Ordinance 2000 (VIII of
2000) may, not later than ten days before the day fixed for poll
abroad, register himself as an elector in the Embassy, Mission or
Consulate, as the case may be, where he intends to cast his
vote;
(2) For the purpose of registration, a Pakistani living abroad
may make an application through courier or in person, in the
format provided by the Commission on its website, to the
authorized officer who shall issue a receipt to the elector
containing the information of the constituency in which he is
registered in Pakistan if the applicant applies in person.
(3) The application through courier must be received at the
Embassy or Mission at least ten days before polling day and the
authorized officer shall send a receipt to the applicant at his
address given in the application:
Provided that any Pakistani living abroad shall not be entitled to
be registered as elector if he:
(i) is not registered as voter in any constituency in Pakistan;
(ii) is in possession of National Identity Card for Overseas
Pakistanis issued to him for one country and he applies
for registration from another country;
(iii) does not produce the original National Identity Card for
Overseas Pakistanis or such card has expired;
(iv) seeks registration on the basis of Pakistan Origin Card.
Const.P.39 & 90/11 4
(4) The authorized officer shall electronically mark the elector
in the voters’ list whereupon the elector shall become entitled to
vote and such list shall be made available to the Presiding
Officer at the Polling Station established abroad.
Explanation: The authorized officer means any officer authorized
by the Commission for the purpose of this section.
47-E. Voting procedure.- (1) Where an elector presents
himself at a polling station abroad, the Presiding Officer shall
issue him a ballot paper, after satisfying himself about the
identity of the elector and for that purpose may require him to
produce his National Identity Card for Overseas Pakistanis;
(2) Before a ballot paper is issued to an elector, the Assistant
Presiding Officer shall:
(i) verify the number and name of the National and
Provincial Assembly constituency in Pakistan of the
elector where his name appears in the electoral rolls
database, with the help of his National
Identity Card for Overseas Pakistanis;
(ii) call out the name of the elector and his constituency
number;
(iii) mark the entry relating to the elector on the electoral roll
to indicate that the elector has cast his vote;
(iv) print a ballot paper with counterfoil containing the
particulars of the elector and obtain the thumb impression
of the elector on the counterfoil;
(v) stamp the ballot paper on its back with the official mark
and sign it;
(3) After receiving the ballot paper the elector shall mark the
ballot paper with Marking Aid Stamp at any place within the
space containing the name and symbol of the contesting
candidate for whom he wishes to vote and insert it in the ballot
box.
47-F. Election Monitors.- The Commission shall appoint as
many independent monitors as may be necessary at a polling
station abroad to ensure the conduct of free, fair and
transparent poll.
47-G. Poll Day.- (1) For the purpose of out of country
voting the poll day or days shall be the day or days fixed for
polling abroad by the Commission.
Const.P.39 & 90/11 5
(2) The Commission shall fix the day or days and hours which
shall not be less than eight hours, during which the poll shall be
held and the Presiding Officer shall give the public notice for the
day or days and hours so fixed and hold the poll accordingly.
47-H. Supply of election material.- The Commission shall
provide well in advance, the election material as may be
required for the purpose at the relevant polling stations
established abroad.
47-I. Close of poll.- (1) At the close of poll, the Presiding
Officer shall open the ballot boxes and take out all the ballot
papers and segregate them National and Provincial Assembly
constituency-wise; count the ballot papers and prepare
statement of count in respect of each candidate in the presence
of the monitors and the Assistant Presiding Officers.
(2) The Presiding Officer shall put the ballot papers in
separate temper-evident bags constituency-wise and shall place
a copy of the statement of count in each bag duly signed by the
Presiding Officer and the monitors.
(3) The Presiding Officer shall send through diplomatic bag,
all the temper-evident bags containing the marked ballot
papers, statement of the count and ballot paper account to the
Commission.
(4) The Commission on receipt of the diplomatic bag from the
Presiding Officer shall take out all the temper-evident bags and
send to the Returning Officer concerned the respective temperevident
bags so as to reach him before the consolidation of
results.
47-J. Application of laws:- (1) Subject to the provisions
of this Chapter, the provisions of this Act and the provisions of
the Representation of the People (Conduct of Election) Rules,
1977 shall mutatis mutandis apply to our of country voting.
Const.P.39 & 90/11 6
(2) The provinces of this Ordinance shall not apply to fill a
casual vacancy in the Assembly which has fallen vacant for any
reason after general elections, 2013.
47-K. Removal of difficulties. If any difficulty arises in giving
effect to any of the provisions of this Ordinance, the
Commission may make such provision or pass such order not
inconsistent with the provisions of this Act for the removal of the
difficulty as the Commission may deem fit.”
Similarly, by means of section 3 of the Ordinance, 2013, certain
amendments were made in section 103A of ROPA to the following
effect:-
“3. Amendment of section 103A, Act LXXXV of 1976.- In
the Representation of the People Act, 1976 (LXXXV of 1976), in
section 103A, for the words, comma, figures and brackets ‘the
Contempt of Court Act, 1976 (XLIV of 1976), the worlds,
comma, figures and brackets ‘the Contempt of Court Ordinance,
2003 (V of 2003)’ shall be substituted.”
Lastly, by means of section 4 of the Ordinance, 2013, sub-section (6)
was added to section 7 of the in ERA, which reads as under: -
“(6) Any person holding National Identity Card for Overseas
Pakistani and living abroad for any purpose shall be deemed to
be resident in the electoral area in which he would have been
resident if he had not been abroad.”
In this way the order of the Court was implemented by the authorities.
3. We must assert that political good governance depends on
the participation of the masses in the electoral process; hence, the
role of every voter is very much important in bringing a true
democracy. It is participation of each and every individual which would
bring about a positive change. Individuals use their right of vote to
choose their representatives, which is provided in the Objectives
Resolution. In order to achieve the Constitutional objective of
Const.P.39 & 90/11 7
democracy; we have to bear in mind the importance of every single
voter as the primary stakeholder in the process of conducting
elections.
4. It is only the power of ballot which has the capacity to
create a change in a country. Theodore Roosevelt, the 26th President
of the United States (1901–1909), has highlighted this point by
asserting that “a vote is like a rifle; its usefulness depends upon the
user.” Similarly, Lyndon B. Johnson, the 36th President of the United
States (1963-1696), has said that “the vote is the most powerful
instrument ever devised by man for breaking down injustice and
destroying the terrible walls which imprison men because they are
different from other men.”
5. Sir Winston Churchill, the Prime Minister of the United
Kingdom from 1940 to 1945, said that “at the bottom of all tributes
paid to democracy is the little man, walking into a little booth, with a
little pencil making a little cross on a little bit of paper – no amount of
rhetoric or voluminous discussion can possibly diminish the
overwhelming importance of the point”. It is in this context that we
have time and again asserted that every necessary and possible step
needs to be taken in order to encourage the people to participate in
this process.
6. Under Article 17 of the Constitution every citizen has right
to vote to participate in the governance of the country through their
chosen representatives. The law provides the people of this country,
irrespective of their social ethnical status and religious affiliation, to
choose their representative in whom they repose confidence. Hence,
Const.P.39 & 90/11 8
every eligible individual should be allowed to utilize the right to vote
irrespective of his caste or creed or any other consideration. The
Supreme Court of Pakistan adjudged many cases on the aspect of
access of voters to the credentials of the contesting candidates.
Reference in this behalf may be made to the case of Mian Najeeb-ud-
Din Owaisi vs. Amir Yar (CMA 1535/2013 etc) wherein this Court held
as under:-
“The voters who are about to elect their representatives are one
of the most important stakeholders, therefore, to achieve the
object of honest, just and fair elections, they would not
constitutionally and legally allow a candidate to manage to
sneak into Parliament without proving that he is qualified to
represent them as such representative has to perform the
noblest and honourable job of making policies and laws for the
Nation.”
Reference may also be made to the case of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416) wherein it has been
observed that Article 17(2) provides the basic guarantee to the citizen
against usurpation of his will to freely participate in the affairs of the
governance of Pakistan through political activity relating thereto. The
said observation was also reaffirmed by this Court in the Case of
Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC
473). Thus, objection raised by learned Attorney General on the
maintainability of petition under Article 184(3) of the Constitution, is
overruled.
7. It is now settled in almost all countries of the world that
every citizen of a country, irrespective of his place of residence, must
be allowed to participate in and contribute to the democratic process
of his country, though the manners and the extent of the right to vote
Const.P.39 & 90/11 9
differ from country to another. Countries including Austria, Belgium,
Croatia, France, Italy and Norway allow voting to all the categories of
non-resident citizens, including those permanently residing abroad
while Bosnia & Herzegovina, Denmark, Germany and United Kingdom
are countries that allow the right to vote to certain categories of
citizens residing abroad.
8 . It is to be noted that there is no distinction between the
citizens living within Pakistan or outside the country, with regard to
the right to vote in terms of the Article 17 of the Constitution. The only
difference is that the citizens living within the country have been
provided the facilities to caste their vote in the elections, i.e. the
Elections of National and Provincial Assemblies, Local Bodies and
others, whereas citizens living abroad are yet to be extended the
mentioned facilities. It warrants to mention that the right to vote has
not been denied to the overseas Pakistanis, who are as much
important as those living inside the country, but only the facilities to
vote, which provides the sense of ownership and participation in the
governance of the country, has not been extended to them. Needles to
observe that the Pakistani citizens living abroad earn money by
working there and then send the same in the shape of foreign
remittances to the country. In this manner, they contribute to the
welfare of the state, well being of the citizens and good governance of
the country by providing financial support through their families living
inside Pakistan.
9. It must be clarified here that the overseas Pakistanis, as
noted hereinabove, enjoy the right to participate in the election
process in terms of Article 17 of the Constitution being dignified
Const.P.39 & 90/11 10
citizens of the country, though residing outside its territory, as such
they cannot be denied the same rights on technical grounds, i.e.
logistic arrangements made outside the country for casting their votes.
10. This matter need not to be discussed any further on the
strength of Constitutional provisions as well as the law discussed
hereinabove, and importantly the government itself having realized
this aspect of the issue, promulgated an Ordinance on 09.05.2013
making the necessary amendments in the Election Laws. However, the
only issue remains the implementation of the law and converting it
into an Act of the Parliament, for providing permanency to its
provisions, thereby ensuring fairness in all kinds of elections including
the elections of National and Provincial Assemblies as well as Local
Bodies in terms of Articles 32 and 140A of the Constitution.
11. It is vital to note, however, that during hearing of the
listed petitions, the Court insisted the Election Commission of Pakistan
as well as the Federal Government to ensure the participation of
Overseas Pakistanis in the General Elections of 2013, but the
Ordinance, whereby the required amendments were made in the
Election Laws, was promulgated and gazetted on 09.05.2013, only two
days prior to the date of holding of General Elections, therefore,
necessary arrangements could not have been made to extend the
facility of voting to the Overseas Pakistanis.
12. Now as the General Elections are over and a newly elected
Government is in power, while, elections of Local Bodies are
approaching, the Executive/Federal Government is bound to discharge
its Constitutional/legal obligations to ensure that the citizens/voters
Const.P.39 & 90/11 11
living outside the country are enabled to participate in all kinds of
elections in future including the forthcoming elections of Local Bodies.
13. Needless to observe that notwithstanding the fact that an
Ordinance has been issued which is likely to be made an Act of the
Parliament, but if, for any reason, the said Ordinance lapses, not being
made an Act of Parliament, it shall be deemed that Article 17 of the
Constitution continues to insist upon the Federal Government to
extend the facility of voting to overseas Pakistanis in the election of
the Parliament as well as Local Bodies.
14. These are the reasons of our short order of even date,
which is reproduced hereinbelow:-
“These Constitution Petitions have been filed under Article
184(3) of the Constitution of the Islamic Republic of Pakistan,
1973, on behalf of Ch. Nasir Iqbal and other Expatriate
Pakistanis and by Mr. Imran Khan, Chairman, PTI and others,
instituted as back as on 21.04.2011 and 19.12.2011. The relief
claimed in both the mentioned Constitution Petitions is somehow
an identical, therefore, from one of the Constitution Petition
bearing No.39 of 2011, the same has been reproduced herein
below:-
“It is therefore most humbly prayed that the instant petition
may kindly be accepted and respondents be directed to take all
those steps which are necessary for implementation of the
fundamental right of vote to all overseas Pakistanis including
arrangements in Consulates and Embassies of Pakistan all over
the world before the next General Election for National and
Provincial Assemblies and an opportunity be provided to
overseas Pakistanis of casting their votes.”
2. Both the said petitions came up for hearing before
this Court on different dates commencing from 21.12.2011
when an order in the Constitution Petition No.90 of 2011, was
passed. As we intend to dispose of both these Constitution
Petitions for the reasons to be recorded later but consider it
appropriate to reproduce the order noted hereinbefore in
Const.P.39 & 90/11 12
extenso for the sake of comprehending the background of the
issues involved in the matters:-
“This petition has been filed under Article 184(3) of the
Constitution of Islamic Republic of Pakistan. The issue being
raised herein is about declaring that the citizens of Pakistan in
terms of Article 51 of the Constitution but living outside the
country, have the fundamental right of franchise, therefore,
denying such right to the citizens, who are reportedly about
eight millions living outside the country, raises the question of
public importance.
2. It may be noted that the citizens may be within or
outside the country have a right to elect their representatives
for the Parliament and any such person who is not residing in
the country at the time when the polling takes place, cannot be
denied the right of franchise solely for the reason that he is not
available in the country.
3. Learned counsel appearing for the petitioner states that
there are three categories of the citizens residing outside the
country and are being deprived of their right of franchise. He
has explained the three categories as follows: -
a) Those who are citizens of Pakistan but living outside the
country or born outside the country being national of
Pakistan and the passport is issued to them by the
Government of Pakistan, and they are earning their
livelihood outside the country and making remittances
to support their dependants in the country;
b) The Officers/Officials of the Diplomatic service;
c) Those citizens, who were originally Pakistanis but have
acquired the nationality of the other country and
maintaining/ holding both the nationalities.
4. He has also pointed out that as back as in the year
1993, Constitution Petition No.26 of 1993 was filed before this
Court claiming the same relief as it has been prayed for by him
and in that matter, a larger Bench of this Court vide judgment
dated 15.11.1993 had forwarded the matter to the Government
of Pakistan for consideration. According to him till date there
had been correspondence between different Ministries but so
far no final decision in this regard has taken place. He has read
before us paras 8, 9 and 10 of the judgment. For the sake of
convenience, the same are reproduced herein below: -
“8. The leaned counsel for the petitioner finally
suggested that this matter which has already been
brought to the notice of the Chief Election Commissioner
and the Government should in the first instance be
examined in depth by the Chief Election Commissioner
and finally by the Government with a view to facilitate
the exercise of franchise by the eligible Pakistanis living
abroad. In this context the provisions on the subject
contained in the other comparable Federal Constitutions
may also be examined and appropriate steps taken
depending upon the extent of resources of the
Government.
9. We consider that this is a reasonable suggestion
and before dealing with the question in the abstract on
the legal and constitutional plane, it would be proper
Const.P.39 & 90/11 13
that this exercise is undertaken in the first instance by
the authorities constitutionally entrusted with the task.
10. As regards the extra territoriality of the laws, we
may point out that the Constitution already provides
that “obedience to the Constitution and the Laws is the
obligation of every citizen wherever he may be”. This
suggests the Pakistanis living abroad to the laws of the
land even those which do not have extra territoriality.
With these observations, the Petition is disposed of.”
5. The learned counsel has also referred to a write-up,
purported to have been issued by the Electronic Government
Directorate, Ministry of IT & Telecom, Government of Pakistan
and has referred to its different captions which are as under: -
a) Grant of Right of vote to Overseas Pakistanis;
b) Representations of Overseas Pakistanis in the National
and Provincial Assemblies;
c) Action taken on the issues.
From the last mentioned caption ‘action taken on the issues’
following items being important and relevant to subject are
noted for reference:-
i) Giving a right to vote to citizens residing overseas has
precedent in many countries, e.g. France, United States,
etc.
ii) Determination/delimitation of a constituency for each
Province (as proposed in the said summary) may not be
possible for Overseas Pakistanis citizens.
iii) Many Overseas Pakistanis especially in the United States
are not allowed to keep their Pakistanis citizenship if
they become naturalized citizens there, in such a
situation, they will not be able to vote for representation
in Pakistani legislatives.
iv) The Election Commission of Pakistan has re-constituted
the Special Committee on right of vote to overseas
Pakistanis under the Chairmanship of Secretary, Election
Commission of Pakistan including the representative
from Prime Minister’s Secretariat, Ministry of Overseas
Pakistanis, M/o Foreign Affairs, M/o Law & Justice, M/o
Parliamentary Affairs, M/o Finance, National Database &
Registration Authority (NADRA), Overseas Pakistanis
Foundation (OPF) and offices of Election Commission of
Pakistan.
6. Learned Attorney General for Pakistan, however,
requests that he needs some time to consult Ministry of Law &
Justice, Ministry of Foreign Affairs, Ministry of Overseas
Pakistanis and the Election Commission of Pakistan and states
that after taking instructions from these departments, he would
be in a better position to make his submissions.
7. In above view of the matter, the case is adjourned. In
the meantime, office is directed to issue notice to the
respondents to file their replies/concise statements to the
petition within a period of two weeks. Copy of this order along
with memo of the petition and its annexures be supplied to the
respondents during course of the day. On receipt of
replies/concise statements from the respondents, office shall
put up the matter in Court for hearing.
Const.P.39 & 90/11 14
3. A perusal of the above order finds mentioned an
earlier effort made by the overseas Pakistanis in the case of
Miss Yasmin Khan and another v. Election Commission of
Pakistan, Islamabad through Secretary an another (1994 SCMR
113) when the said Constitution Petition was admitted to regular
hearing on 04.10.1993, and notices were issued to all
concerned. Finally, by a Larger Bench of this Court, the above
petition was disposed of on 15.11.1993. The relevant para
therefrom finds mentioned in the order, reproduced
hereinabove.
4. Syed Sher Afgan, Director General (Elections), ECP,
stated that according to his knowledge the observations of this
Court in the case of Yasmin Khan (ibid) were considered by the
Cabinet in 1996-1997 but approval was not granted for
extending the Right to Expatriate Pakistanis but refused to
extend them Right of Franchise, to be exercised outside the
country. However, he had not placed on record any such
decision. If, same is available, he may place the same on record
so we may incorporate the same in the reasons, which shall be
recorded later.
5. It is to be noted that the ECP, following the
background of the matter commencing from the judgment in the
case of Yasmin Khan (ibid), constituted a Committee in October,
1997, to consider these issues. Unfortunately, the final decision
could not be taken, as it is reported that on the part of the
Government, no progress could be made.
6. Again on 17.11.2009, a Special Committee was
constituted to consider the following two questions:
“i. Whether right of vote to overseas Pakistanis should be
granted to them and if so, what method including
personal voting and voting through fax, etc. should be
adopted after examining threadbare the feasibility of the
method so agreed upon by the Committee;
ii. Whether granting representation to overseas Pakistanis
in the National and Provincial Assemblies by reserving
seats therein and electing the representatives of
overseas Pakistanis on such seats through proportional
representation system is a suitable option.”
7. This Committee, headed by the Secretary, ECP,
had furnished its report on 20.01.2012, we are not aware
Const.P.39 & 90/11 15
regarding the proceedings or implementation of the
recommendations of the Committee subsequent thereto, thus,
we asked the Director General (Elections), ECP, to place the
same on record. In the meanwhile, from time to time, hearing
continued and on 25.04.2013, CMA No.2389 of 2013, was
presented under the signature of the learned Attorney General
for Pakistan, wherein as many as 27 concerns were shown for
consideration of this Court.
8. Notice of the above CMA was issued to the
Chairman, NADRA, who had submitted reply. The relevant para
therefrom is reproduced hereinbelow:
“6. NADRA has already requested Election Commission of
Pakistan through its letter dated 1st April 2013 to convey its
final decision of opting e-Voting solution or otherwise before 5th
April 2013. With each passing day, smooth and seamless
deployment of proposed solution is becoming an increasingly
challenging task. From 1st April till date i.e. 26th April 2013,
NADRA has yet to receive a green signal from ECP. Hence, the
resultant loss of time which was the most precious commodity
in our hands. However, holding the Honorable Supreme Court
in highest esteem and considering it a privilege to be of
assistance in enabling overseas Pakistanis to exercise their
right of adult franchise, NADRA remains unwaivered in its
resolve and wholeheartedness to comply with any direction
passed by the Honorable Supreme Court of Pakistan.”
9. The Ministry of Foreign Affairs in its reply finally
gave its reaction in respect of the concerns shown on behalf of
the Government, which reads as under:-
“The Ministry of Foreign Affairs reassures the Honorable Court
that it will use all of its available resources to implement the
decision of the Honourable Supreme Court and the Election
Commission of Pakistan (ECP), on granting the right to vote to
Overseas Pakistanis.
The Ministry has previously also submitted to the Honourable
Supreme Court its position on the subject in CMA No.1973/2013
on 11 April, 2013.
In this regard, in anticipation of the decision of the Honourable
Supreme Court and the ECP, the Ministry of Foreign Affairs has
already taken practical steps which include, seeking the
necessary permission from the governments of the nine shortlisted
countries enumerated by the ECP.
In this context, the following 07 countries have already
conveyed their permission for conducting polling in their
respective territories with the proviso that the date and timing of
the election should be conveyed to them in a timely manner in
order to enable them to make the necessary
security/administrative arrangements. The 07 countries which
have conveyed their permission are:
(i) Australia;
Const.P.39 & 90/11 16
(ii) Bahrain;
(iii) Canada;
(iv) Kuwait;
(v) Oman;
(vi) Saudi Arabia; and
(vii) UK.
The response of the remaining two countries – UAE and USA – is
awaited. Our Heads of Mission in these two countries are in
touch with the concerned host authorities.
The Ministry of Foreign Affairs being an integral part of the
overall governmental machinery was consulted in drafting of the
CMA No.2389/13. The apprehensions and reservations contained
therein, relate to the capacity limitations of the Missions. It was
therefore, deemed necessary to apprise the Court about the
constraints, which may impede the smooth conduction of the
polling process. Therefore, bringing these capacity issues to the
attention of the Honourable Court was considered necessary and
is in conformance with the duty of the Foreign Ministry.
Nonetheless, the Ministry of Foreign Affairs reiterates its
commitment and reassures the Honourable Court and the ECP
that it stands ready with all its resources at its disposal to carry
out any task assigned to it for the realization of the right to vote
to Overseas Pakistanis.”
10. The Ministry of the Overseas Pakistanis disclosed as
under:-
“10. It is again submitted that the Ministry of Overseas
Pakistanis is in coordination with the relevant Ministries and
would provide all possible assistance through its CWA Missions
working under the respective Heads of Missions i.e.
Ambassadors/High Commissioners in line with the directions of
the Honourable Supreme Court.”
11. On behalf of Ministry of Finance, Mr. Sadaqat
Ahmed, Section Officer (Litigation) appeared and stated that the
Finance Ministry is ready and willing to provide funding as per
the direction of this Court or the ECP.
12. Syed Sher Afgan, Director General (Elections), ECP,
stated that the issue under discussion had been considered by
the Chief Election Commissioner as well as by the Commission,
which is reproduced hereunder:
“6. In view of the above, if the learned Members agree, we
may respectfully inform the Supreme Court tomorrow that
although we welcome their observations in relation to giving
Overseas Pakistanis the right to vote, the ECP is of the
considered view that this initiative should not be hurriedly
implemented for the forthcoming elections.”
Const.P.39 & 90/11 17
13. It is to be noted that on 26.04.2013, the Court
started dictating the order and meanwhile learned Attorney
General for Pakistan so also Mr. Muhammad Munir Piracha, Sr.
ASC, for the ECP sought time to seek instructions in this behalf
from the Election Commission of Pakistan. Now today (29th
April) the learned Attorney General for Pakistan appeared and
has presented under his signatures a statement (CMA No.2454
of 2013) which is the outcome of a meeting held by him with
the ECP. For convenience, the same is reproduced herein
below:-
“1. That the undersigned held a meeting with the Chief
Election Commissioner and all the members of the Election
Commission of Pakistan (ECP). The ECP has appreciated the
role of the Supreme Court of Pakistan (SCP) keeping in view
the utmost concern, desire and expectation which the apex
Court has with the former qua enabling the Overseas Pakistanis
to cast their votes outside their constituency and country. On
this premise the voters residing within their country but
residing outside their constituency or province deserve at the
least a similar treatment. Surely all this is possible depending
on finances and time frame.
2. That during the meeting, the ECP unanimously agreed
to accomplish the desired task while requesting the
Government of Pakistan to prepare requisite proposals for
effecting the required legislation which may be made applicable
to the aforesaid voters after the forthcoming General Elections
in the country.
3. That the ECP has also expressed its satisfaction with
regard to the efforts made so far by various departments of the
federal government in carrying out the necessary steps in
extending cooperation to achieve the desired results in the
shortest possible time thereby enabling the ECP to agree to the
applicability of the aforesaid legislative proposals in the above
terms.”
14. A perusal of the statement reproduced hereinabove
clarifies that the ECP recognizes the right to exercise franchise
to expatriate Pakistanis on well known principle of law that they
deserve at least a similar treatment and facilitation qua the
voters residing within the country but outside their constituency
or province.
15. However, reservations for extending the facility to
expatriate as expressed is the non-availability of the requisite
legislation in respect whereof the ECP has agreed to accomplish
the desired task by requesting the Government of Pakistan to do
the needful but after the forthcoming General Elections in the
country added with the reason of non-availability of finances
and the paucity of time in view of the facts noted hereinabove.
Const.P.39 & 90/11 18
View point of the Ministry of Finance and other Ministries has
categorically noted on the previous dates of hearing wherein
they had expressed their desire to accomplish the task by
providing finances as per the directions of this Court or the ECP
and likewise Ministry of Foreign Affairs, Chairman NADRA and
the Ministry of Overseas Pakistanis had also given positive
response in this behalf. It is equally important to note that the
ECP has expressed its satisfaction with regard to the efforts
made so far by various departments of the Federal Government
in carrying out the necessary steps in extending co-operations
to achieve the desired results in the shortest possible time
thereby enabling the ECP to agree to the applicability of the
aforesaid legislative proposals in the above terms.
16. We have heard the learned counsel for the
petitioners, the Representatives of the Ministries of Foreign
Affairs, Overseas Pakistanis, Finance as well as the ECP and the
learned Attorney General for Pakistan. However, the learned
Attorney General for Pakistan, questioned the maintainability of
the petitions, as according to him, neither the Fundamental
Right of the petitioners is involved nor the ECP being an
independent institution is obliged to provide them the facility to
exercise the Right of Franchise outside the territory of Pakistan
and, if any Overseas Pakistani comes on the day of polling he
can exercise the Right of Franchise. The jurisdiction of this Court
has also been objected to by him in granting the relief. He
further argued that it is the job of the ECP to arrange the
Elections, therefore, no direction can be issued to the ECP for
providing the facilities to Expatriates to exercise their Right of
Franchise outside the Pakistan. He further stated that as the
legislation has to be promulgated and it is not the job of this
Court but of the National Assembly, which is presently stands
resolved and until an Assembly is elected, no legislation is
possible besides this Court cannot take upon itself to legislate
the laws.
17. Thus, under the circumstances, we are of the
opinion that once on having recognized that facility can be
extended to the expatriates to exercise right of franchise, the
ECP’s further efforts/input is required to achieve the object in
the forthcoming General Elections can conveniently be achieved.
Const.P.39 & 90/11 19
“18. Therefore, for the reasons to be recorded later, we
dispose of both the petitions with the observations that let the
ECP make all possible efforts to achieve the object, as has been
noted hereinabove so the expatriates may also participate in the
forthcoming General Elections in exercise of their fundamental
rights conferred under Article 17(2) of the Constitution of the
Islamic Republic of Pakistan, 1973.”
Chief Justice
Judge
Judge
Islamabad the
29th April, 2013
Approved For Reporting
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
Constitution Petitions No.39 & 90 of 2011
Ch. Nasir Iqbal & others (in Const.P.39)
Imran Khan, Chairman, PTI etc (in Const.P.90)
Petitioner(s)
VERSUS
Federation of Pakistan, thr. Secretary Law & others (in Const.P.39)
Federation of Pakistan (in Const.P.90)
Respondent(s)
For the Petitioner(s) :
(In Const.P.39/2011) Mian Abdul Rauf, ASC
(In Const.P.90/2011) Nemo
On Court’s Notice
: Mr. Ifran Qadir, Attorney General for Pakistan
Mr. Dil Muhammad Khan Alizai, DAG
For the ECP : Mr. Muhammad Munir Paracha, ASC
Syed Sher Afghan, DG (Elections)
For M/O Overseas & OPF : Raja Muhammad Farooq, ASC
Dr. M. Sarwar Zahid, Chief
Mr. Fayyaz Ahmed Malik. Deputy Chief
Mr. Khurram Shiraz, L.O. OPF
For the NADRA : Mr. Afnan Karim Kundi, ASC
Mr. Tariq Malik, Chairman
Mr. Saqib Jamal, Sr. LO
For M/O Foreign Affairs : Mr. Iftikhar Anjum, DG, Overseas Pakistanis
For M/O Finance : Mr. Sadaqat Ahmed, SO (L)
Const.P.39 & 90/11 2
Dates of Hearing : 26 & 29.04.2013
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. — The listed
Constitution Petitions were disposed of vide short order dated
29.04.2013 with the observations that let the ECP make all possible
efforts to achieve the object, so the expatriates may also participate in
the General Elections in exercise of their fundamental rights conferred
under Article 17(2) of the Constitution of the Islamic Republic of
Pakistan, 1973.
2. In the meanwhile as it has been noted above, the Election
Commission of Pakistan (ECP) took up the matter with the concerned
Government Authorities and ultimately the President of Pakistan, in
exercise of the powers conferred by clause (1) of Article 89 of the
Constitution of the Islamic Republic of Pakistan, promulgated the
Election Laws (Amendment) Ordinance, 2013 [Ordinance No. IV of
2013], published in the Extraordinary Official Gazette on 09.05.2013,
to amend the Representation of the People Act, 1976 (LXXXV of 1976)
[ROPA] as well as the Electoral Rolls Act, 1974 (XXI of 1974) [ERA].
By means of section 2 of the Ordinance, 2013, Chapter V-B titled “Out
of Country Voting”, containing sections 47-B to 47-K, was inserted in
ROPA. The said provisions are reproduced hereinbelow: -
“Chapter V-B
Out of country Voting
47-B. Polling Station.- (1) the Commission, at least fourteen
days before the day fixed for poll abroad, shall establish polling
stations with as many polling booths as may be necessary in the
premises of an Embassy, a Mission or a Consulate or any other
public place notified by the Embassy, Mission or Consulate, in
the countries as may be determined by it;
Const.P.39 & 90/11 3
Provided that the Ministry of Foreign Affairs have obtained
consent of such host country for establishment of the polling
stations.
47-C. Appointment of Presiding Officers, etc._ The
Commission from amongst the officers of the Federal
Government or Autonomous Bodies under the Federal
Government, preferably posted abroad, shall appoint as many
Presiding Officers as the number of polling stations and as many
Assistant Presiding Officers as the number of polling booths
established in an Embassy, Mission, Consulate or public place
notified for the purpose.
47-D. Registration of Pakistani citizens living abroad.- (1)
A Pakistani who lives abroad and is in possession of National
Identity Card for Overseas Pakistanis issued under the National
Database and Registration Authority Ordinance 2000 (VIII of
2000) may, not later than ten days before the day fixed for poll
abroad, register himself as an elector in the Embassy, Mission or
Consulate, as the case may be, where he intends to cast his
vote;
(2) For the purpose of registration, a Pakistani living abroad
may make an application through courier or in person, in the
format provided by the Commission on its website, to the
authorized officer who shall issue a receipt to the elector
containing the information of the constituency in which he is
registered in Pakistan if the applicant applies in person.
(3) The application through courier must be received at the
Embassy or Mission at least ten days before polling day and the
authorized officer shall send a receipt to the applicant at his
address given in the application:
Provided that any Pakistani living abroad shall not be entitled to
be registered as elector if he:
(i) is not registered as voter in any constituency in Pakistan;
(ii) is in possession of National Identity Card for Overseas
Pakistanis issued to him for one country and he applies
for registration from another country;
(iii) does not produce the original National Identity Card for
Overseas Pakistanis or such card has expired;
(iv) seeks registration on the basis of Pakistan Origin Card.
Const.P.39 & 90/11 4
(4) The authorized officer shall electronically mark the elector
in the voters’ list whereupon the elector shall become entitled to
vote and such list shall be made available to the Presiding
Officer at the Polling Station established abroad.
Explanation: The authorized officer means any officer authorized
by the Commission for the purpose of this section.
47-E. Voting procedure.- (1) Where an elector presents
himself at a polling station abroad, the Presiding Officer shall
issue him a ballot paper, after satisfying himself about the
identity of the elector and for that purpose may require him to
produce his National Identity Card for Overseas Pakistanis;
(2) Before a ballot paper is issued to an elector, the Assistant
Presiding Officer shall:
(i) verify the number and name of the National and
Provincial Assembly constituency in Pakistan of the
elector where his name appears in the electoral rolls
database, with the help of his National
Identity Card for Overseas Pakistanis;
(ii) call out the name of the elector and his constituency
number;
(iii) mark the entry relating to the elector on the electoral roll
to indicate that the elector has cast his vote;
(iv) print a ballot paper with counterfoil containing the
particulars of the elector and obtain the thumb impression
of the elector on the counterfoil;
(v) stamp the ballot paper on its back with the official mark
and sign it;
(3) After receiving the ballot paper the elector shall mark the
ballot paper with Marking Aid Stamp at any place within the
space containing the name and symbol of the contesting
candidate for whom he wishes to vote and insert it in the ballot
box.
47-F. Election Monitors.- The Commission shall appoint as
many independent monitors as may be necessary at a polling
station abroad to ensure the conduct of free, fair and
transparent poll.
47-G. Poll Day.- (1) For the purpose of out of country
voting the poll day or days shall be the day or days fixed for
polling abroad by the Commission.
Const.P.39 & 90/11 5
(2) The Commission shall fix the day or days and hours which
shall not be less than eight hours, during which the poll shall be
held and the Presiding Officer shall give the public notice for the
day or days and hours so fixed and hold the poll accordingly.
47-H. Supply of election material.- The Commission shall
provide well in advance, the election material as may be
required for the purpose at the relevant polling stations
established abroad.
47-I. Close of poll.- (1) At the close of poll, the Presiding
Officer shall open the ballot boxes and take out all the ballot
papers and segregate them National and Provincial Assembly
constituency-wise; count the ballot papers and prepare
statement of count in respect of each candidate in the presence
of the monitors and the Assistant Presiding Officers.
(2) The Presiding Officer shall put the ballot papers in
separate temper-evident bags constituency-wise and shall place
a copy of the statement of count in each bag duly signed by the
Presiding Officer and the monitors.
(3) The Presiding Officer shall send through diplomatic bag,
all the temper-evident bags containing the marked ballot
papers, statement of the count and ballot paper account to the
Commission.
(4) The Commission on receipt of the diplomatic bag from the
Presiding Officer shall take out all the temper-evident bags and
send to the Returning Officer concerned the respective temperevident
bags so as to reach him before the consolidation of
results.
47-J. Application of laws:- (1) Subject to the provisions
of this Chapter, the provisions of this Act and the provisions of
the Representation of the People (Conduct of Election) Rules,
1977 shall mutatis mutandis apply to our of country voting.
Const.P.39 & 90/11 6
(2) The provinces of this Ordinance shall not apply to fill a
casual vacancy in the Assembly which has fallen vacant for any
reason after general elections, 2013.
47-K. Removal of difficulties. If any difficulty arises in giving
effect to any of the provisions of this Ordinance, the
Commission may make such provision or pass such order not
inconsistent with the provisions of this Act for the removal of the
difficulty as the Commission may deem fit.”
Similarly, by means of section 3 of the Ordinance, 2013, certain
amendments were made in section 103A of ROPA to the following
effect:-
“3. Amendment of section 103A, Act LXXXV of 1976.- In
the Representation of the People Act, 1976 (LXXXV of 1976), in
section 103A, for the words, comma, figures and brackets ‘the
Contempt of Court Act, 1976 (XLIV of 1976), the worlds,
comma, figures and brackets ‘the Contempt of Court Ordinance,
2003 (V of 2003)’ shall be substituted.”
Lastly, by means of section 4 of the Ordinance, 2013, sub-section (6)
was added to section 7 of the in ERA, which reads as under: -
“(6) Any person holding National Identity Card for Overseas
Pakistani and living abroad for any purpose shall be deemed to
be resident in the electoral area in which he would have been
resident if he had not been abroad.”
In this way the order of the Court was implemented by the authorities.
3. We must assert that political good governance depends on
the participation of the masses in the electoral process; hence, the
role of every voter is very much important in bringing a true
democracy. It is participation of each and every individual which would
bring about a positive change. Individuals use their right of vote to
choose their representatives, which is provided in the Objectives
Resolution. In order to achieve the Constitutional objective of
Const.P.39 & 90/11 7
democracy; we have to bear in mind the importance of every single
voter as the primary stakeholder in the process of conducting
elections.
4. It is only the power of ballot which has the capacity to
create a change in a country. Theodore Roosevelt, the 26th President
of the United States (1901–1909), has highlighted this point by
asserting that “a vote is like a rifle; its usefulness depends upon the
user.” Similarly, Lyndon B. Johnson, the 36th President of the United
States (1963-1696), has said that “the vote is the most powerful
instrument ever devised by man for breaking down injustice and
destroying the terrible walls which imprison men because they are
different from other men.”
5. Sir Winston Churchill, the Prime Minister of the United
Kingdom from 1940 to 1945, said that “at the bottom of all tributes
paid to democracy is the little man, walking into a little booth, with a
little pencil making a little cross on a little bit of paper – no amount of
rhetoric or voluminous discussion can possibly diminish the
overwhelming importance of the point”. It is in this context that we
have time and again asserted that every necessary and possible step
needs to be taken in order to encourage the people to participate in
this process.
6. Under Article 17 of the Constitution every citizen has right
to vote to participate in the governance of the country through their
chosen representatives. The law provides the people of this country,
irrespective of their social ethnical status and religious affiliation, to
choose their representative in whom they repose confidence. Hence,
Const.P.39 & 90/11 8
every eligible individual should be allowed to utilize the right to vote
irrespective of his caste or creed or any other consideration. The
Supreme Court of Pakistan adjudged many cases on the aspect of
access of voters to the credentials of the contesting candidates.
Reference in this behalf may be made to the case of Mian Najeeb-ud-
Din Owaisi vs. Amir Yar (CMA 1535/2013 etc) wherein this Court held
as under:-
“The voters who are about to elect their representatives are one
of the most important stakeholders, therefore, to achieve the
object of honest, just and fair elections, they would not
constitutionally and legally allow a candidate to manage to
sneak into Parliament without proving that he is qualified to
represent them as such representative has to perform the
noblest and honourable job of making policies and laws for the
Nation.”
Reference may also be made to the case of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416) wherein it has been
observed that Article 17(2) provides the basic guarantee to the citizen
against usurpation of his will to freely participate in the affairs of the
governance of Pakistan through political activity relating thereto. The
said observation was also reaffirmed by this Court in the Case of
Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC
473). Thus, objection raised by learned Attorney General on the
maintainability of petition under Article 184(3) of the Constitution, is
overruled.
7. It is now settled in almost all countries of the world that
every citizen of a country, irrespective of his place of residence, must
be allowed to participate in and contribute to the democratic process
of his country, though the manners and the extent of the right to vote
Const.P.39 & 90/11 9
differ from country to another. Countries including Austria, Belgium,
Croatia, France, Italy and Norway allow voting to all the categories of
non-resident citizens, including those permanently residing abroad
while Bosnia & Herzegovina, Denmark, Germany and United Kingdom
are countries that allow the right to vote to certain categories of
citizens residing abroad.
8 . It is to be noted that there is no distinction between the
citizens living within Pakistan or outside the country, with regard to
the right to vote in terms of the Article 17 of the Constitution. The only
difference is that the citizens living within the country have been
provided the facilities to caste their vote in the elections, i.e. the
Elections of National and Provincial Assemblies, Local Bodies and
others, whereas citizens living abroad are yet to be extended the
mentioned facilities. It warrants to mention that the right to vote has
not been denied to the overseas Pakistanis, who are as much
important as those living inside the country, but only the facilities to
vote, which provides the sense of ownership and participation in the
governance of the country, has not been extended to them. Needles to
observe that the Pakistani citizens living abroad earn money by
working there and then send the same in the shape of foreign
remittances to the country. In this manner, they contribute to the
welfare of the state, well being of the citizens and good governance of
the country by providing financial support through their families living
inside Pakistan.
9. It must be clarified here that the overseas Pakistanis, as
noted hereinabove, enjoy the right to participate in the election
process in terms of Article 17 of the Constitution being dignified
Const.P.39 & 90/11 10
citizens of the country, though residing outside its territory, as such
they cannot be denied the same rights on technical grounds, i.e.
logistic arrangements made outside the country for casting their votes.
10. This matter need not to be discussed any further on the
strength of Constitutional provisions as well as the law discussed
hereinabove, and importantly the government itself having realized
this aspect of the issue, promulgated an Ordinance on 09.05.2013
making the necessary amendments in the Election Laws. However, the
only issue remains the implementation of the law and converting it
into an Act of the Parliament, for providing permanency to its
provisions, thereby ensuring fairness in all kinds of elections including
the elections of National and Provincial Assemblies as well as Local
Bodies in terms of Articles 32 and 140A of the Constitution.
11. It is vital to note, however, that during hearing of the
listed petitions, the Court insisted the Election Commission of Pakistan
as well as the Federal Government to ensure the participation of
Overseas Pakistanis in the General Elections of 2013, but the
Ordinance, whereby the required amendments were made in the
Election Laws, was promulgated and gazetted on 09.05.2013, only two
days prior to the date of holding of General Elections, therefore,
necessary arrangements could not have been made to extend the
facility of voting to the Overseas Pakistanis.
12. Now as the General Elections are over and a newly elected
Government is in power, while, elections of Local Bodies are
approaching, the Executive/Federal Government is bound to discharge
its Constitutional/legal obligations to ensure that the citizens/voters
Const.P.39 & 90/11 11
living outside the country are enabled to participate in all kinds of
elections in future including the forthcoming elections of Local Bodies.
13. Needless to observe that notwithstanding the fact that an
Ordinance has been issued which is likely to be made an Act of the
Parliament, but if, for any reason, the said Ordinance lapses, not being
made an Act of Parliament, it shall be deemed that Article 17 of the
Constitution continues to insist upon the Federal Government to
extend the facility of voting to overseas Pakistanis in the election of
the Parliament as well as Local Bodies.
14. These are the reasons of our short order of even date,
which is reproduced hereinbelow:-
“These Constitution Petitions have been filed under Article
184(3) of the Constitution of the Islamic Republic of Pakistan,
1973, on behalf of Ch. Nasir Iqbal and other Expatriate
Pakistanis and by Mr. Imran Khan, Chairman, PTI and others,
instituted as back as on 21.04.2011 and 19.12.2011. The relief
claimed in both the mentioned Constitution Petitions is somehow
an identical, therefore, from one of the Constitution Petition
bearing No.39 of 2011, the same has been reproduced herein
below:-
“It is therefore most humbly prayed that the instant petition
may kindly be accepted and respondents be directed to take all
those steps which are necessary for implementation of the
fundamental right of vote to all overseas Pakistanis including
arrangements in Consulates and Embassies of Pakistan all over
the world before the next General Election for National and
Provincial Assemblies and an opportunity be provided to
overseas Pakistanis of casting their votes.”
2. Both the said petitions came up for hearing before
this Court on different dates commencing from 21.12.2011
when an order in the Constitution Petition No.90 of 2011, was
passed. As we intend to dispose of both these Constitution
Petitions for the reasons to be recorded later but consider it
appropriate to reproduce the order noted hereinbefore in
Const.P.39 & 90/11 12
extenso for the sake of comprehending the background of the
issues involved in the matters:-
“This petition has been filed under Article 184(3) of the
Constitution of Islamic Republic of Pakistan. The issue being
raised herein is about declaring that the citizens of Pakistan in
terms of Article 51 of the Constitution but living outside the
country, have the fundamental right of franchise, therefore,
denying such right to the citizens, who are reportedly about
eight millions living outside the country, raises the question of
public importance.
2. It may be noted that the citizens may be within or
outside the country have a right to elect their representatives
for the Parliament and any such person who is not residing in
the country at the time when the polling takes place, cannot be
denied the right of franchise solely for the reason that he is not
available in the country.
3. Learned counsel appearing for the petitioner states that
there are three categories of the citizens residing outside the
country and are being deprived of their right of franchise. He
has explained the three categories as follows: -
a) Those who are citizens of Pakistan but living outside the
country or born outside the country being national of
Pakistan and the passport is issued to them by the
Government of Pakistan, and they are earning their
livelihood outside the country and making remittances
to support their dependants in the country;
b) The Officers/Officials of the Diplomatic service;
c) Those citizens, who were originally Pakistanis but have
acquired the nationality of the other country and
maintaining/ holding both the nationalities.
4. He has also pointed out that as back as in the year
1993, Constitution Petition No.26 of 1993 was filed before this
Court claiming the same relief as it has been prayed for by him
and in that matter, a larger Bench of this Court vide judgment
dated 15.11.1993 had forwarded the matter to the Government
of Pakistan for consideration. According to him till date there
had been correspondence between different Ministries but so
far no final decision in this regard has taken place. He has read
before us paras 8, 9 and 10 of the judgment. For the sake of
convenience, the same are reproduced herein below: -
“8. The leaned counsel for the petitioner finally
suggested that this matter which has already been
brought to the notice of the Chief Election Commissioner
and the Government should in the first instance be
examined in depth by the Chief Election Commissioner
and finally by the Government with a view to facilitate
the exercise of franchise by the eligible Pakistanis living
abroad. In this context the provisions on the subject
contained in the other comparable Federal Constitutions
may also be examined and appropriate steps taken
depending upon the extent of resources of the
Government.
9. We consider that this is a reasonable suggestion
and before dealing with the question in the abstract on
the legal and constitutional plane, it would be proper
Const.P.39 & 90/11 13
that this exercise is undertaken in the first instance by
the authorities constitutionally entrusted with the task.
10. As regards the extra territoriality of the laws, we
may point out that the Constitution already provides
that “obedience to the Constitution and the Laws is the
obligation of every citizen wherever he may be”. This
suggests the Pakistanis living abroad to the laws of the
land even those which do not have extra territoriality.
With these observations, the Petition is disposed of.”
5. The learned counsel has also referred to a write-up,
purported to have been issued by the Electronic Government
Directorate, Ministry of IT & Telecom, Government of Pakistan
and has referred to its different captions which are as under: -
a) Grant of Right of vote to Overseas Pakistanis;
b) Representations of Overseas Pakistanis in the National
and Provincial Assemblies;
c) Action taken on the issues.
From the last mentioned caption ‘action taken on the issues’
following items being important and relevant to subject are
noted for reference:-
i) Giving a right to vote to citizens residing overseas has
precedent in many countries, e.g. France, United States,
etc.
ii) Determination/delimitation of a constituency for each
Province (as proposed in the said summary) may not be
possible for Overseas Pakistanis citizens.
iii) Many Overseas Pakistanis especially in the United States
are not allowed to keep their Pakistanis citizenship if
they become naturalized citizens there, in such a
situation, they will not be able to vote for representation
in Pakistani legislatives.
iv) The Election Commission of Pakistan has re-constituted
the Special Committee on right of vote to overseas
Pakistanis under the Chairmanship of Secretary, Election
Commission of Pakistan including the representative
from Prime Minister’s Secretariat, Ministry of Overseas
Pakistanis, M/o Foreign Affairs, M/o Law & Justice, M/o
Parliamentary Affairs, M/o Finance, National Database &
Registration Authority (NADRA), Overseas Pakistanis
Foundation (OPF) and offices of Election Commission of
Pakistan.
6. Learned Attorney General for Pakistan, however,
requests that he needs some time to consult Ministry of Law &
Justice, Ministry of Foreign Affairs, Ministry of Overseas
Pakistanis and the Election Commission of Pakistan and states
that after taking instructions from these departments, he would
be in a better position to make his submissions.
7. In above view of the matter, the case is adjourned. In
the meantime, office is directed to issue notice to the
respondents to file their replies/concise statements to the
petition within a period of two weeks. Copy of this order along
with memo of the petition and its annexures be supplied to the
respondents during course of the day. On receipt of
replies/concise statements from the respondents, office shall
put up the matter in Court for hearing.
Const.P.39 & 90/11 14
3. A perusal of the above order finds mentioned an
earlier effort made by the overseas Pakistanis in the case of
Miss Yasmin Khan and another v. Election Commission of
Pakistan, Islamabad through Secretary an another (1994 SCMR
113) when the said Constitution Petition was admitted to regular
hearing on 04.10.1993, and notices were issued to all
concerned. Finally, by a Larger Bench of this Court, the above
petition was disposed of on 15.11.1993. The relevant para
therefrom finds mentioned in the order, reproduced
hereinabove.
4. Syed Sher Afgan, Director General (Elections), ECP,
stated that according to his knowledge the observations of this
Court in the case of Yasmin Khan (ibid) were considered by the
Cabinet in 1996-1997 but approval was not granted for
extending the Right to Expatriate Pakistanis but refused to
extend them Right of Franchise, to be exercised outside the
country. However, he had not placed on record any such
decision. If, same is available, he may place the same on record
so we may incorporate the same in the reasons, which shall be
recorded later.
5. It is to be noted that the ECP, following the
background of the matter commencing from the judgment in the
case of Yasmin Khan (ibid), constituted a Committee in October,
1997, to consider these issues. Unfortunately, the final decision
could not be taken, as it is reported that on the part of the
Government, no progress could be made.
6. Again on 17.11.2009, a Special Committee was
constituted to consider the following two questions:
“i. Whether right of vote to overseas Pakistanis should be
granted to them and if so, what method including
personal voting and voting through fax, etc. should be
adopted after examining threadbare the feasibility of the
method so agreed upon by the Committee;
ii. Whether granting representation to overseas Pakistanis
in the National and Provincial Assemblies by reserving
seats therein and electing the representatives of
overseas Pakistanis on such seats through proportional
representation system is a suitable option.”
7. This Committee, headed by the Secretary, ECP,
had furnished its report on 20.01.2012, we are not aware
Const.P.39 & 90/11 15
regarding the proceedings or implementation of the
recommendations of the Committee subsequent thereto, thus,
we asked the Director General (Elections), ECP, to place the
same on record. In the meanwhile, from time to time, hearing
continued and on 25.04.2013, CMA No.2389 of 2013, was
presented under the signature of the learned Attorney General
for Pakistan, wherein as many as 27 concerns were shown for
consideration of this Court.
8. Notice of the above CMA was issued to the
Chairman, NADRA, who had submitted reply. The relevant para
therefrom is reproduced hereinbelow:
“6. NADRA has already requested Election Commission of
Pakistan through its letter dated 1st April 2013 to convey its
final decision of opting e-Voting solution or otherwise before 5th
April 2013. With each passing day, smooth and seamless
deployment of proposed solution is becoming an increasingly
challenging task. From 1st April till date i.e. 26th April 2013,
NADRA has yet to receive a green signal from ECP. Hence, the
resultant loss of time which was the most precious commodity
in our hands. However, holding the Honorable Supreme Court
in highest esteem and considering it a privilege to be of
assistance in enabling overseas Pakistanis to exercise their
right of adult franchise, NADRA remains unwaivered in its
resolve and wholeheartedness to comply with any direction
passed by the Honorable Supreme Court of Pakistan.”
9. The Ministry of Foreign Affairs in its reply finally
gave its reaction in respect of the concerns shown on behalf of
the Government, which reads as under:-
“The Ministry of Foreign Affairs reassures the Honorable Court
that it will use all of its available resources to implement the
decision of the Honourable Supreme Court and the Election
Commission of Pakistan (ECP), on granting the right to vote to
Overseas Pakistanis.
The Ministry has previously also submitted to the Honourable
Supreme Court its position on the subject in CMA No.1973/2013
on 11 April, 2013.
In this regard, in anticipation of the decision of the Honourable
Supreme Court and the ECP, the Ministry of Foreign Affairs has
already taken practical steps which include, seeking the
necessary permission from the governments of the nine shortlisted
countries enumerated by the ECP.
In this context, the following 07 countries have already
conveyed their permission for conducting polling in their
respective territories with the proviso that the date and timing of
the election should be conveyed to them in a timely manner in
order to enable them to make the necessary
security/administrative arrangements. The 07 countries which
have conveyed their permission are:
(i) Australia;
Const.P.39 & 90/11 16
(ii) Bahrain;
(iii) Canada;
(iv) Kuwait;
(v) Oman;
(vi) Saudi Arabia; and
(vii) UK.
The response of the remaining two countries – UAE and USA – is
awaited. Our Heads of Mission in these two countries are in
touch with the concerned host authorities.
The Ministry of Foreign Affairs being an integral part of the
overall governmental machinery was consulted in drafting of the
CMA No.2389/13. The apprehensions and reservations contained
therein, relate to the capacity limitations of the Missions. It was
therefore, deemed necessary to apprise the Court about the
constraints, which may impede the smooth conduction of the
polling process. Therefore, bringing these capacity issues to the
attention of the Honourable Court was considered necessary and
is in conformance with the duty of the Foreign Ministry.
Nonetheless, the Ministry of Foreign Affairs reiterates its
commitment and reassures the Honourable Court and the ECP
that it stands ready with all its resources at its disposal to carry
out any task assigned to it for the realization of the right to vote
to Overseas Pakistanis.”
10. The Ministry of the Overseas Pakistanis disclosed as
under:-
“10. It is again submitted that the Ministry of Overseas
Pakistanis is in coordination with the relevant Ministries and
would provide all possible assistance through its CWA Missions
working under the respective Heads of Missions i.e.
Ambassadors/High Commissioners in line with the directions of
the Honourable Supreme Court.”
11. On behalf of Ministry of Finance, Mr. Sadaqat
Ahmed, Section Officer (Litigation) appeared and stated that the
Finance Ministry is ready and willing to provide funding as per
the direction of this Court or the ECP.
12. Syed Sher Afgan, Director General (Elections), ECP,
stated that the issue under discussion had been considered by
the Chief Election Commissioner as well as by the Commission,
which is reproduced hereunder:
“6. In view of the above, if the learned Members agree, we
may respectfully inform the Supreme Court tomorrow that
although we welcome their observations in relation to giving
Overseas Pakistanis the right to vote, the ECP is of the
considered view that this initiative should not be hurriedly
implemented for the forthcoming elections.”
Const.P.39 & 90/11 17
13. It is to be noted that on 26.04.2013, the Court
started dictating the order and meanwhile learned Attorney
General for Pakistan so also Mr. Muhammad Munir Piracha, Sr.
ASC, for the ECP sought time to seek instructions in this behalf
from the Election Commission of Pakistan. Now today (29th
April) the learned Attorney General for Pakistan appeared and
has presented under his signatures a statement (CMA No.2454
of 2013) which is the outcome of a meeting held by him with
the ECP. For convenience, the same is reproduced herein
below:-
“1. That the undersigned held a meeting with the Chief
Election Commissioner and all the members of the Election
Commission of Pakistan (ECP). The ECP has appreciated the
role of the Supreme Court of Pakistan (SCP) keeping in view
the utmost concern, desire and expectation which the apex
Court has with the former qua enabling the Overseas Pakistanis
to cast their votes outside their constituency and country. On
this premise the voters residing within their country but
residing outside their constituency or province deserve at the
least a similar treatment. Surely all this is possible depending
on finances and time frame.
2. That during the meeting, the ECP unanimously agreed
to accomplish the desired task while requesting the
Government of Pakistan to prepare requisite proposals for
effecting the required legislation which may be made applicable
to the aforesaid voters after the forthcoming General Elections
in the country.
3. That the ECP has also expressed its satisfaction with
regard to the efforts made so far by various departments of the
federal government in carrying out the necessary steps in
extending cooperation to achieve the desired results in the
shortest possible time thereby enabling the ECP to agree to the
applicability of the aforesaid legislative proposals in the above
terms.”
14. A perusal of the statement reproduced hereinabove
clarifies that the ECP recognizes the right to exercise franchise
to expatriate Pakistanis on well known principle of law that they
deserve at least a similar treatment and facilitation qua the
voters residing within the country but outside their constituency
or province.
15. However, reservations for extending the facility to
expatriate as expressed is the non-availability of the requisite
legislation in respect whereof the ECP has agreed to accomplish
the desired task by requesting the Government of Pakistan to do
the needful but after the forthcoming General Elections in the
country added with the reason of non-availability of finances
and the paucity of time in view of the facts noted hereinabove.
Const.P.39 & 90/11 18
View point of the Ministry of Finance and other Ministries has
categorically noted on the previous dates of hearing wherein
they had expressed their desire to accomplish the task by
providing finances as per the directions of this Court or the ECP
and likewise Ministry of Foreign Affairs, Chairman NADRA and
the Ministry of Overseas Pakistanis had also given positive
response in this behalf. It is equally important to note that the
ECP has expressed its satisfaction with regard to the efforts
made so far by various departments of the Federal Government
in carrying out the necessary steps in extending co-operations
to achieve the desired results in the shortest possible time
thereby enabling the ECP to agree to the applicability of the
aforesaid legislative proposals in the above terms.
16. We have heard the learned counsel for the
petitioners, the Representatives of the Ministries of Foreign
Affairs, Overseas Pakistanis, Finance as well as the ECP and the
learned Attorney General for Pakistan. However, the learned
Attorney General for Pakistan, questioned the maintainability of
the petitions, as according to him, neither the Fundamental
Right of the petitioners is involved nor the ECP being an
independent institution is obliged to provide them the facility to
exercise the Right of Franchise outside the territory of Pakistan
and, if any Overseas Pakistani comes on the day of polling he
can exercise the Right of Franchise. The jurisdiction of this Court
has also been objected to by him in granting the relief. He
further argued that it is the job of the ECP to arrange the
Elections, therefore, no direction can be issued to the ECP for
providing the facilities to Expatriates to exercise their Right of
Franchise outside the Pakistan. He further stated that as the
legislation has to be promulgated and it is not the job of this
Court but of the National Assembly, which is presently stands
resolved and until an Assembly is elected, no legislation is
possible besides this Court cannot take upon itself to legislate
the laws.
17. Thus, under the circumstances, we are of the
opinion that once on having recognized that facility can be
extended to the expatriates to exercise right of franchise, the
ECP’s further efforts/input is required to achieve the object in
the forthcoming General Elections can conveniently be achieved.
Const.P.39 & 90/11 19
“18. Therefore, for the reasons to be recorded later, we
dispose of both the petitions with the observations that let the
ECP make all possible efforts to achieve the object, as has been
noted hereinabove so the expatriates may also participate in the
forthcoming General Elections in exercise of their fundamental
rights conferred under Article 17(2) of the Constitution of the
Islamic Republic of Pakistan, 1973.”
Chief Justice
Judge
Judge
Islamabad the
29th April, 2013
Approved For Reporting
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