Election Act 2017 can only be struck down if it is against Constitution: CJP

ISLAMABAD: Hearing a set of petitions challenging the Election Act 2017, which paved the way for ex-PM Nawaz Sharif to regain presidency of the Pakistan Muslim League-Nawaz (PML-N), Chief Justice of Pakistan (CJP) Mian Saqib Nisar on Thursday observed that the law could only be struck down if it was against any provision of the Constitution.

He was heading a three-member SC bench, comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan, which was hearing 16 almost identical petitions against the Election Act 2017.

Resuming his arguments, Babar Awan, counsel for Pakistan Tehreek-e-Insaf (PTI), submitted that former prime minister Nawaz Sharif still controlled his party. He said the tickets for the coming Senate election were also issued by him.

He said although Nawaz Sharif was disqualified by the court, he was still very powerful because he headed the party.

“Nawaz Sharif is not criminal, but disqualified,” the chief justice said, and asked the counsel to cite any judgment where the court had struck down a law, which was person specific. Awan then referred a para of Panama judgment wherein observation was made against Nawaz Sharif.

The chief justice then questioned as to whether the court could strike down a law on the basis of an observation made by a judge. Awan said it was a unique situation that a disqualified person was heading the ruling party.

He said the law enacted in the ‘Election Reforms Act’ was person specific. He said that Article 63A should be read with Article 5 of the Constitution.

The chief justice said the party head was consulted by the members of the parliament the world over. The counsel, however, contended that a person who could not become member of the parliament was heading a political party after the enactment of Election Act.

“If a person is imprisoned for a criminal offence, can he control his party from jail?” the chief justice asked.

Awan submitted that after the Panama case verdict, the new law of electoral reforms was passed just to reduce the affects of the judgment. After the bill was carried through both the houses of parliament, it was amended and the proviso was added in it, Awan said.

The chief justice then inquired from Additional Attorney General Waqar Rana whether the original bill had the proviso or not.

Waqar Rana stated that it was in the bill which was tabled in the National Assembly and Senate. He said it was the same bill which was presented to the president for assent. He then presented the record of the National Assembly and Senate debates on the Election Act.

Awan submitted that under section 203 of Election Act, the power in the political party rested with its president. He requested the court to strike down the law as it was person-specific and in violation of the certain provisions of the constitution.

Meanwhile, Sheikh Ahsenuddin advocate told the court that he would argue on behalf of Pakistan Justice Democratic Party (PJDC).

To a court question about the PJDC representation, Sheikh Ahsenuddin stated that the party was in the whole of Pakistan and a large number of people had joined it. “But I have not seen it anywhere,” the chief justice said.

Sheikh Ahsenuddin said PJDC was registered with the Election Commission of Pakistan (ECP). He said the PJDC was launched on December 25, 2015 by Iftikhar Muhammad Chaudhry. Meanwhile, the court adjourned the hearing till Friday (today).

Published in Daily Times, February 9th 2018.