P L D 2012 Balochistan 11
Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J
Senator ABDUL MALIK and 2 others ---Petitioners
Versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Economic Affairs
and Statistics, Isl amabad and 4 others ---Respondents
Constitutional Petition No.259 of 2011, decided on 25th August, 2011.
(a) Census Ordinance (X of 1959) ---
----Ss. 3 & 7 ---Constitution of Pakistan, Arts: 130 (6), 151 (5) & 199 -Constitutional
petition ---Census, stop ping of ---Judicial power ---Responsibilities of Ministers -Sitting
Ministers of Provincial Assembly sought intervention of High Court to stop the
authorities from conducting census in Balochistan Province ---Plea raised by the
petitioners was that there was a large number of Afghan refugees and adverse law and
order situation was prevailing in the province which was not conducive to hold census ---
Since, after the invasion of Afghanistan, six general elections had been held in Pakistan
but question of Afghan re fugees was not raised ---Number of Afghan refugees had
considerably decreased over time and position with regard to them was much better than
the one prevailing in years, 1981 or 1998, when last two censuses were held or when
previous six general elections took place ---Principal responsibility for maintenance of law
and order was of the government and two petitioners were sitting ministers, therefore,
they were effectively expressing no -confidence in their own government and thus in their
own ability ---Such petitioners should spend their energies in trying to improve law and
order situation rather than to use the same as a pretext to stop a legal and sanctioned
activity of the State i.e. holding of census ---Petitioners in their capacity as Ministers of
the Go vernment were "collectively responsible" in terms of Art.130(6) of the
Constitution, therefore, their demand of stopping census by effectively citing their own
failure was surprising ---Successful Nations do not cite excuses to delay or postpone what
requir es to be done because of some difficulty but rise to the occasion to overcome the
same ---Petitioners or people of Balochistan should have no objection to the census taking
place, as seats in National Assembly were to be allocated "on the basis of populatio n in
accordance with the last preceding census officially published", therefore, if Balochistan
would record the actual population it might have more members in National Assembly
and thus a greater say in the affairs of Pakistan ---Political decision should not be assailed
in court and particularly by those who were aggrieved by the decision of their own
government ---Federal Government was to decide as to when and whether a census was to
take place and there was no reason for the courts to interfere --- High Court declined to
interfere in the process of census to be conducted in Balochistan province ---Petition was
dismissed in circumstances.
(b) Census Ordinance (X of 1959) ---
----Preamble ---Census of houses and population --- Object and scope --- Figures pr ovided
by census help parliamentarians and governments, both provincial and federal, and even
local authorities to better plan for the future ---To consider, whether hospitals, colleges,
schools etc. are required to be built and in which particular area ---Most nations of the
world include even illegal immigrants in their census because illegal immigrants too avail
the services provided by the State, province or local authority and thus bona fide citizens
or residents are not deprived.
Muhammad Aslam Chish ti and Nadir Ali Chalgari for Petitioners.
Malik Sikandar Khan, D.A.G. for Pakistan for Federal Government and
Amanullah Kanrani, A.G. for Provincial Government.
Date of hearing: 22nd August, 2011.
ORDER
QAZI FAEZ ISA, C J. ---Constitutional Petition N o.254 of 2011 has been filed by
two Ministers in the Government of Balochistan belonging to one political party and
Constitutional Petition No.259 of 2011 by two Senators belonging to another political
party seeking to stop the census that is being carried out in Balochistan pursuant to The
Census Ordinance, 1959 ("Census Ordinance") . Since both the petitions raise the same
points they are being disposed of by this common order.
2. The brief facts of both these petitions is that the Government of Pakistan i ssued
notifications dated 12th February 2011 and 3rd March, 2011 ("notifications") , under
sections 3 and 7 of the Census Ordinance declaring that, a "house listing operation for
taking population and housing census for Pakistan" be carried out. Section 3 s tipulates,
that, "The Federal Government may, from time to time, by notification in the official
Gazette, declare that a census for Pakistan shall be taken during such period as may be
specified therein," whereas section 7 empowers the Federal Government t o formulate a
questionnaire in this regard.
3. Messrs Hadi Shakeel Ahmed and Mohammad Aslam Chishti, learned counsel for
the petitioners, opposed the holding of the census for the following: (1) After the Soviet
invasion of Afghanistan in 1979 there was a influx of four million Afghan refugees into
Pakistan and many of the refugees have not gone back to Afghanistan as yet, (2) the
prevailing law and order situation is not conducive to holding census, (3) a large segment
of the populations of District Dera B ugti and District Marri have migrated in view of the
disturbances in their areas and (4) there were floods in Naseerabad Division in the middle
of 2010 compelling the local population to migrate to other safer areas. We were told to
take judicial notice of all these 'facts.' Learned counsel further contended that it was
expected that if the census went ahead it would exaggerate the actual population of
Balochistan, which would be adverse to the interest of the people of Balochistan.
4. Learned counsel for t he petitioners stated that censuses were held in Pakistan in
years 1951, 1961, 1972, 1981 and 1998 and that the present census would be the sixth
census. Thus it appears that, except for the last census, ten years is the period which
separates each census. The last census however was held in the year 1998 that is thirteen
years ago, and as such it appears that a census is overdue.
5. Learned Deputy Attorney General has filed comments on behalf of the
respondents in Constitutional Petition No.259 of 2001, ev en though notice was not issued
to the respondents. The comments state that the Council of Common Interests in its
meeting held on 8th November, 2010 decided to hold census on the demand of the
provincial governments. It was further stated that Afghan refu gees registered in camps
have been excluded from the census, that the housing listing operation has been
successfully completed in Districts of Dera Bugti and Kohlu as well as in the rest of
Pakistan and only remains to be conducted in Awaran, Kech (Turbat ) and Panjgur.
6. Since the learned counsel for the petitioners placed the greatest stress on the
question of the presence of purportedly four million Afghan refugees this point is being
considered first of all. Admittedly the Afghan refugees came to Pakis tan in the aftermath
of the invasion by the Soviet Union and the war that followed, when their numbers were
the highest. However, none of the petitioners sought to prevent the census that took place
in 1981 and 1998. On the contrary the petitioners partici pated in the elections and were
elected on the basis of the electorate, derived from the census figures pursuant to the
censuses of 1981, which if their contention is accepted contained a large number of
Afghan refugees. Since after the said invasion of A fghanistan six general elections have
been held in Pakistan, but the question of Afghan refugees was not raised. If at all the
number of Afghan refugees has, as conceded by Mr.Aslam Chishti, considerably
decreased over time, and the position with regard to Afghan refugees today is much better
than the one prevailing in 1981 or 1998, when the last two censuses were held or when
the previous six general elections took place.
7 The next contention that has been raised is that the prevailing adverse law and
order situation is not conducive to holding of census. The principle responsibility of the
maintenance of law and order is of the government. Two of the petitioners are sitting
Ministers, therefore, they are effectively expressing no -confidence in their own
Government and thus in their own ability. Such petitioners should expend their energies
in trying to improve the law and order situation rather than to use the same as a pretext to
stop a legal and sanctioned activity of the State, i.e. holding of the cens us. The said
petitioners in their capacity as Ministers of the Government are "collectively
responsible" in terms of Article 130(6), therefore, it is most surprising that they are
demanding stopping the census by effectively citing their own failur e. Moreover,
successful nations do not cite excuses to delay or postpone what requires to be done
because of some difficulty but rise to the occasion to overcome the same.
8. The next reason cited to seek postponement of the census is that a large segment
of the population of District Dera Bughti and District Marri migrated in view of the
disturbances in the said areas. Significantly none of the petitioners belong to the said
areas and no one from the said areas has come forward to oppose the holding of th e
census. Moreover, when the General Elections of 2008 and earlier elections took place
the petitioners did not consider not participating therein because of such purported
displacement. The petitioners in Constitutional Petition No.259 of 2001 were also e lected
as senators, that is, they were voted by the members of the Balochistan Assembly, on the
strength of the votes cast and on the basis of the earlier census of 1981 and 1998. The
petitioners have failed to explain their own earlier conduct and the inc onsistent position
that they have now elected to take. At least the petitioners and all those who are or have
been members of Parliament, in taking a contrary position must explain the reasons for
the same, which has not been done.
9. Lastly the floods in Naseerabad Division in the middle of 2010 have been cited as
a reason for putting off the census. It is now over a year since the said floods came and
there is every indication that those affected by the floods have returned home. In any
event the petition ers have not supported their petitions with any proof or photographs
establishing the continued and alleged displacement. Moreover, none of the petitioners
are from the stated flood effected Naseerabad Division.
10. That if for the sake of argument it be p resumed that the contentions of the learned
counsel as mentioned in paragraph 3 above are correct, it still does not explain how the
same would adversely affect the interest of the people of Balochistan if the census took
place. The learned counsel could a lso not come up with any argument in this regard. On
the contrary the people of Balochistan would benefit if the census shows the actual
population of Balochistan, which may be larger, since inter alia the national finance
awards are mostly determined on t he basis of population, and thus the larger the share of
resources received by Balochistan. Therefore, the petitioners or the people of Balochistan
should have no objection to the census taking place. Moreover, the seats in the National
Assembly are alloca ted "on the basis of population in accordance with the last preceding
census officially published" (sub -Article (5) of Article 151), therefore, if Balochistan
records the actual population it may have more Members in the National Assembly and
thus a great er say in the affairs of Pakistan. When confronted with this proposition
learned counsel had nothing to state.
11. The figures provided by the census help parliamentarians and governments, both
provincial and Federal, and even the local authorities, to bet ter plan for the future. For
instance to consider whether hospitals, colleges, schools et cetera are required to built and
in which particular area. Most nations of the world include even illegal immigrants in
their census, because illegal immigrants too a vail of the services provided by the State,
province or local authority, and thus the bona fide citizens or residents are not deprived.
12. The petitioners' counsel also did not cite any precedent in support of their
contentions nor explained how any Funda mental Right of the petitioners' would be
adversely affected if the census took place, despite being specifically confronted in this
regard. They also did not explain how the petitioners may be presumed to be 'aggrieved
persons' within the meaning of Artic le 199 of the Constitution. We also enquired how this
court could suspend an action of the Federal Government taken pursuant to a law which
has been in the field since the last 52 years and pursuant to which five censuses have
already taken place, particul arly when there was no challenge to the said law, but did not
receive any answer in this regard. It is also not denied that the decision to hold census
was taken in the meeting of the Council of Common Interests, constituted under Article
153 of the Consti tution of Pakistan, and includes as its member the Chief Minister of
Balochistan who is presumed to represent the interest of the province. There is nothing on
record that the Chief Minister of Balochistan or the petitioners in C.P. No.254 of 2011,
who are ministers in the cabinet headed by the said Chief Minister, opposed the census. If
at all the said petitioners/Ministers disagreed with their Chief Minister they should have
raised their voice at the relevant time and before the appropriate forum, which a pparently
they did not do. Alternatively they could have resigned from the cabinet in case they felt
very strongly about the issue and about which their Chief Minister felt otherwise.
Political decisions should not be assailed in court and particularly by those who are
aggrieved by the decision of their own Government. In any event when and whether a
census is to take place is to be decided by the Federal Government and a decision in
which there is no reason for the courts to interfere.
13. Therefore, for t he foregoing reasons the petitions are dismissed in limine, but with
no order as to costs.
M.H./102/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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