ISLAMABAD: Taking an opposite stance to its own previous judgements in cases regarding interpretation of Article 62(1)(f), which imposes a life ban on legislators for non-disclosure of assets, the Supreme Court on Wednesday asked returning officers (ROs) not to reject nomination papers of candidates for local government elections for mere “innocent omissions”.

But an RO under the Sindh Local Government Act (SLGA) 2013 will have to undertake a two-step exercise before reaching a final conclusion. In the first stage, he/she must determine whether the defect objected to is of a substantial nature. If the answer is in the negative, it concludes the exercise and the RO is bound not to reject the nomination papers, explained Justice Munib Akhtar in a judgement he wrote.

In case the answer is in the affirmative, then the matter moves to the second stage in which the RO must consider whether, in his discretion, to overrule the objection to the defect though it’s of a substantial nature, as long as it can be remedied forthwith, the judge observed.

“If RO exercises his discretion in favour of the candidate and the defect is remedied forthwith, the nomination papers stand accepted. But if the RO refuses to exercise his discretion then of course the nomination papers stand rejected. But whatever his action, RO must record his reasons appropriately and accordingly, in relation to both stages of the exercise,” the verdict said.

Directs ROs not to reject nomination papers for local elections on mere ‘innocent omissions’

The judgement came on an appeal filed by one Yasir Aftab against the July 20 decision of Sindh High Court’s Hyderabad circuit. A three-judge SC bench, headed by Justice Ijaz-ul-Ahsan, had taken up the appeal moved in the wake of a dispute during the ongoing LG election process in Sindh under SLGA 2013.

The judgement explained that no provision of SLGA 2013 contains anything equivalent to Article 62(1)(f) of the Constitution which spells out disqualification for life to lawmakers contesting elections for the Senate, National Assembly or a provincial assembly for non-declaration of assets in the nomination papers.

Yasir Aftab had filed his nomination papers for councillor’s seat in Jarki Union Council, Sindh. His opponent Irfan Gull sought rejection of the papers on the grounds that the appellant had not fully disclosed and declared his and his spouse’s assets and properties.

The objection was rejected by the RO and the nomination papers were accepted.

The contesting respondent filed an appeal in the appellate authority constituted by the Election Commission of Pakistan, but it was dismissed again. Consequently, the respondent filed a writ petition in the SHC, which accepted the plea.

The SC verdict explained that the awareness of candidates in the LG elections about legal niceties and requirements may not be as sophisticated as that of the candidates who contest elections at the national and provincial levels.

“The local bodies operate at grassroots level and candidates for such offices may lack legal sophistication in terms of their commitment to, and enthusiasm for, the local community. Such candidatures should be encouraged and stimulated and not denied or discouraged,” the judgement said, emphasising that at the same time it would also be remembered that many regard local bodies as nurseries for “higher” elective office.

“Such nurseries should be allowed to flourish with maximal participation in the electoral process. Therefore, the defect, even if properly determined to be of a substantial nature may be of an essentially technical nature,” it observed.

“The position of the objector — invariably another candidate or his supporter — is protected both by conferring discretion on RO and the limiting feature, namely, that the defect must be remediable forthwith. Such discretion must of course be lawfully exercised, in terms of principles that are well established and settled in the case law,” the verdict said, adding that it was rightly and properly exercised in favour of rejecting the nomination papers.

“But that is a matter to be decided on a consideration of the facts and circumstances of each case by RO. If the matter can be remedied forthwith, RO may allow the candidacy to move forward to a contested election,” the judgement observed.

The Supreme Court accepted the appeal by setting aside the high court order and remanded back the case with a directive that since the issue relates to an ongoing electoral process, the SHC will dispose of the case within a month.

Published in Dawn, December 1st, 2022