Daily Times

For promoting the ratification of the US Constitution, James Madison (fourth president of USA) in collaboration with Alexander Hamilton and Jon Jay, wrote the ‘The Federalist Papers’. In one of the paper, Madison wrote “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself”.

On July 28 2017, the decision of Panama case was announced, all the five Judges of the Supreme Court of Pakistan unanimously disqualified the then Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif. The disqualification was recorded by the august Court under Article 62 (1) (f) of the Constitution read with Section 99 (f) of the Representation of the Peoples Act, 1976.

As a result of disqualification, two problems arose for Nawaz Sharif: i) the first proviso to Article 5 of the Political Parties Order 2002 reads as follows “a person shall not be appointed or serve as an office bearer of a political party if he is not qualified to be or is disqualified from being, elected or chosen as a member of the Parliament under Article 63 of the Constitution of the Islamic Republic of Pakistan or under any other law for the time being in force” ii)a series of judgments of apex Court hold that any person who is disqualified under the Article 62(1)(f) of the Constitution shall be disqualified for life.

It’s a settled principle of law in Pakistan that a statute can be struck down by the superior courts on two grounds: firstly, where the legislature has no competency to legislate, and secondly, where the enactment contravenes a fundamental right or constitutional provisions

Accordingly, the fate of Nawaz went into state of flux, on the one hand he was struck by life time disqualification and on the other hand he became ineligible to become officer bearer (head) of his party.

In response, the ruling party enacted the Election Act 2017 (Election Act), Section 203(1) of the Election Act states “Every citizen, not in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party”. Section 232 of the Election Act states “Where a person has been convicted for any offence under this Act or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall, if the Commission is of the view that circumstances so warrant and makes an order to that effect, be disqualified for such period not exceeding five years as may be specified in the order from being, or being elected as a Member of an Assembly, the Senate or a local government.”

The Election Act has led to interesting legal debates regarding the vires and constitutionality of the Act; some public spirited individuals have challenged the vires of the Election Act by filing constitutional petitions in high court and Supreme Court of Pakistan. Some parliamentarians, particularly those from the government quarters have started to glorify and rave about the AV Dicey’s (British jurist and constitutional theorist) nineteenth century doctrine of parliamentary sovereignty.

Despite conspicuous irrelevance of parliamentary sovereignty in our constitutional set up, our political elite’s regard for it hasn’t ended and it has failed to liberate itself from the manacles of intellectual subservience to colonial political models. It is a meaningless exercise to try finding solutions to our native legal puzzles in irrelevant foreign constitutional setups which are substantially different from the legal system of Pakistan.

Adulterating the clarity of our indigenous constitution with foreign influences is a myopic, irrelevant and superfluous idea. Firstly, the doctrine is a unique product of unwritten constitutions and secondly, in the contemporary world the doctrine has lost its constitutional significance even in the country of its birth. In 2005, Lord Steyn in Jackson Vs Attorney General UKHL adumbrated “the classic account given by Dicey of the doctrine of supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”.

The doctrine of parliamentary sovereignty was an essential feature of an unwritten constitution, for instance, the British Constitution. Pakistan (like USA and India) has a written constitution and it works on the principle of ‘separation of power’ and ‘system of checks and balances’ whereby all three organs of the state ie the executive, legislature and judiciary work in their respective domains and keep a check (on each other) to prevent arbitrary exercise of power. Another distinctive feature of constitutional set up of Pakistan is that Pakistan is a federation (as opposed to Britain which has unitary setup), under a federal constitution, the judiciary apart from interpreting the constitution also has a duty to act as a guardian of the fundamental constitutional rights and to examine the constitutionality and compatibility of the laws enacted by the legislatures (both by provincial and federal).

In Madbury v Madison 1803, the proposition, whether a statute which contravenes the Constitution can become the law of the land, came before the Supreme Court of USA. The Supreme Court for the first time declared a legislative action as unconstitutional, thus, laying the foundations of judicial review in the United States. The court held that government of USA is a government of laws and not of men, constitution is written, the powers of the Congress are defined, and a statute contrary to the Constitution is not a law at all. Again, in Dred Scott v Sandford, Hepburn v Griswold and various other cases the Court reviewed, upheld and struck down legislations. The Supreme Court of India, in Minerva Mills Ltd case and catena of other pronouncements, held that the doctrine of judicial review is a basic feature of the constitution of India and the judiciary can determine the extent of the power conferred on each branch of the state.

It is also a settled principle of law in Pakistan that a statute could be struck down by the superior courts on two grounds, firstly, where the legislature did not have competency to legislate and secondly, where the enactment contravenes a fundamental right or provision enumerated in the constitution. To further substantiate this argument, reliance can be placed on the ratio settled by the Supreme Court in the case of Baz Muhammad Kakar v Federation of Pakistan.

Now, the question is whether under Article 199, the High Court and under Article 184(3), the Supreme Court on touch stone of the Constitution can declare Section 203 and 232 of the Election Act as void ab-initio, unconstitutional and strike down the same.

Section 203 apart from being inconsistent with Article 62 and 63 of the Constitution, also clearly violates the fundamental right of ‘freedom of association’ embodied in Article 17 of the Constitution. The citizens of Pakistan have a right to join any political party including PML-N; this right would be patently infringed if PML-N is headed by a disqualified person. It is ridiculous to note that a person who on constitutional standards is not ‘truthful and honest’ will now be in control of “truthful and honest” members of the Senate, National Assembly and Provincial Assemblies of Pakistan. Evidently, Section 203 violates Article 62, 63 and 17 of the Constitution, the same is also hit by bar contained in Article 8 of the Constitution, and is therefore, liable to be struck down.

Section 232 of the Elections Act provides that a disqualification shall not exceed more than 5 years. A sub-constitutional law (Elections Act) cannot override the interpretation of constitutional provision (section 62(1)(f)) rendered by the Supreme Court of Pakistan, which commands life time disqualification. Reliance in this regard can be placed on ratio settled by Supreme Court in case of Abdul Ghafoor Lehrivs Returning Officer. Accordingly, section 232 is ultra vires the constitution of Pakistan and liable to be struck down.

French economist and prominent member of French liberal school, Fredric Bastiat rightly said “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it. Regrettably, the Election Act has been enacted to facilitate a person who, has been disqualified by the highest court of the country and is being tried in accountability courts for committing serious crimes. The Election Bill 2017 was questioningly tabled and clandestinely voted in the Senate, the entire proceedings before the senate were full of anarchy, confusion and uncertainty. On the same day, three sessions chaired by three different persons were held in the senate; the actual voting was deliberately allowed to take place in the last session, after the Friday prayers, when most of the Senators did not chip in.

Whilst studying constitutional law during my law degree, I learnt that objecting to the motives and intentions of law making bodies is legally untenable. The dubious and the deceptive way, in which this inglorious Enactment has been passed to facilitate just one person, smacks off clear malafides and seriously compels me to object and protest against the validity and relevance of the rule that “malafides cannot be attributed to the legislature”.

The writer is a lawyer based in Lahore

Published in Daily Times, October 13^th 2017.