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, Islamabad 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, stopping of ---Judicial power ---Responsibilities of Ministers -Sitting Min isters 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 refugees was not
raised ---Number of Afghan refugees had considerably d ecreased 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 ord er 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 Government were "collectively responsible" in terms of Art.130(6) of t he
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failure was surprising ---Successful Nations do not cite excuses to delay or postpone what
requires 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 population 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 aggriev ed 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 provided by
census help parliamentarians and governments, both provinc ial 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 ce nsus 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 Chishti 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 No.254 of 2011 has been filed by
two Ministers in the Government of B alochistan 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 issued
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 stipulates, 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 to formulate a questionnaire in this
regard.
3. Messrs Hadi Shakeel A hmed 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 Bugti 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 ex pected 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 the 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, even though notice was not issued to the
respondents. The comments sta te 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 refugees registered in camps have been excluded from the
census, that th e 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 plac ed 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 Pakistan 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 participated in the elections and were elected on the
basis of the electora te, 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 Afghanistan 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 198 1 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 r esponsibility 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 ex pend 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 census. The said petitioners in their
capacity as Ministers of the Gov ernment 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 failure. Moreover, successful nations do not cite excuses to
delay or post pone 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 migrat ed 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 the census.
Moreover, when the General Elections of 2008 and earlier e lections 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 elected as senators, that is,
they were voted by the members of the B alochistan 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 inconsistent 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
reaso n 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
petitioners 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 presumed 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 also not come up with any argument in this regard. On the contrary th e
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
the basis of population, and thus the larger the share of resources r eceived 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 allocated "on the basis of
population in accordance with the last precedi ng 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 greater say in the affairs of Pakistan. When
confronted with this proposi tion 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 better 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 avail of the services provided by the State, province
or local author ity, 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 Fundamental 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
Article 199 of the Constitution. We also enquired how this court could su spend 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, particularly when there
was no challenge to the said law, but did not receiv e 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 Constitution 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 apparently they did not do. Alternatively they could have resigned fr om 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 the 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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