The Election Act 2017 was enacted to circumvent the first proviso to Article 5 of the Political Parties Order 2002 (PPO) that barred a disqualified parliamentarian to head a political party.
Accordingly, by virtue of section 203(1) of the Election Act 2017 which 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”.
Thereafter, a constitutional petition challenging section 203 of the Election Act was filed in the Supreme Court. After long arguments, the SC decided that the interpretation of section 203 should be subjected to the provisions of Article 62, 53 and 63-A of the constitution. Moreover, the apex court held that a parliamentarian who has been disqualified under Article 62 and 63 is ineligible to head a political party.
The verdict has been opposed by the ruling party’s parliamentarians who contend that the ruling violates the doctrine of parliamentary supremacy, arguing SC has no power to nullify a parliament’s act.
The argument that the Parliament is supreme and court cannot review its acts is legally misconceived. The principle of parliamentary sovereignty is alien to jurisdictions like Pakistan, India and USA where the constitution is written
Some political commentators have also condemned the verdict as judicial martial law. Some have even warned that apex court’s intervention in a political thicket will make Nawaz even more popular.
Three things merit discussion and need to be clarified:
First, the apex court didn’t entertain a political controversy
Bare reading of the verdict reveals that the court interpreted a pure question of fundamental constitutional importance. US Supreme Court in Gomallion v Lightfoot and the Indian Supreme Court in Rajasthan v Union of India held that a controversy may have a political color but as long as it involves interpretation of constitution, the court cannot refuse to entertain it. Furthermore, the assumption that the verdict will advance Nawaz’s victimization is not a concern of the apex court; its job was to interpret the law on touchstone of constitution which it rightly did.
Second, the apex court has not struck down an act of parliament.
A legal provision is based on principle of exclusion, inclusion or silence. Article 5 of PPO was based on exclusion principle since it expressly barred disqualified parliamentarian from becoming a party head. Conversely, section 203 of Election Act is based on silence principle as the same is quiet on the issue as whether a disqualified member can become a party head or not, however, indirectly it bypassed the bar contained in Article 5 of PPO. The court rather than striking down section 203 read into it Article 62, 63 and 63-A of the Constitution, thereby, nullified the indirect advantage created by section 203.
Third, section 203 was liable to be struck down
Our constitution has two core features: basic and circumstantial. The circumstantial feature is subject to modification, however, the basic feature which includes democracy, parliamentary form of government, independence of judiciary and fundamental rights cannot be altered, bypassed or abrogated. Article 8 of the constitution declares that any law which is inconsistent with or derogates a fundamental right is void. A simple act of parliament is liable to be struck down if it is in conflict with basic or circumstantial feature, for instance, in Baaz Kakar Case 2012 the apex court struck down Contempt of Court Act 2012 for being inconsistent with Article 204 of constitution. As per the ratio settled in Military Courts Case, a constitutional amendment can alter circumstantial feature but is liable to be struck down if it is in conflict with the basic feature.
The argument that parliament is supreme and court cannot review vires of statutes is legally misconceived. The principle of parliamentary sovereignty is alien to jurisdictions like Pakistan, India and USA where the constitution is written. A.V Dicey’s doctrine of parliamentary sovereignty which confers in parliament unlimited power to legislate is an exclusive feature of the unwritten British constitution. In McCormick vs. Lord Advocate, Supreme Civil Court of Scotland held that principle of unlimited parliamentary sovereignty is a distinctively English principle. Despite being the inventors of parliamentary sovereignty, even now the British judges now consider parliamentary sovereignty as an outdated model. Lord Steyn in Jackson vs AG held “Dicey’s doctrine of the supremacy of parliament, pure and absolute it was can now be seen to be out of place in modern United Kingdom. In the same case, Lord Hope adumbrated “Parliamentary sovereignty is no longer, if it ever was, absolute. The rule of law enforced by the courts is the ultimate controlling factor”.
On the other hand, a written constitution envisions principle of constitutional supremacy wherein constitution is a supreme lex; parliament like other organs of the state is subservient to it and derives its powers from it. In Madbury v Madison 1803, the US Supreme Court for the first time declared a legislative act as unconstitutional, the court held that US constitution is written, the powers of the congress are defined and any statute contrary to the constitution is not a law at all. Thereafter, the court in Dred Scott v Sandford and various other cases struck down statutes on doctrine of constitutional supremacy. In Minerva Mills Case 1980, the Indian Supreme Court held that the powers of parliament are not absolute rather subject to the fundamental rights embodied in the constitution. In NJAC Case 2016, apex court of India declared the National Judicial Appointments Commission Act as void for being violative of basic feature of the constitution.
In my understanding, the apex court showed extreme restraint as section 203 deserved to be struck down for being patently inconsistent with the Article 17, 62, 63 and 63-A of the Constitution. Under Article 17 the citizens of Pakistan have a right to join any political party including PMLN, however, this right would be blatantly violated if
PML-N is headed, controlled and managed by a constitutionally disqualified person. A person, who on constitutional standards is not truthful and honest, cannot be permitted to be in control of truthful and honest members of the Senate, National Assembly and Provincial Assemblies.
The writer is a lawyer based in Lahore
Published in Daily Times, March 2nd 2018.