Daily Times

The recent verdict by the apex court that disqualified Nawaz Sharif from heading a political party is a landmark decision that upholds the rule of law and principles of morality.

The Supreme Court in simpliciter has held that if a person cannot contest the elections on account of his disqualification under Article 62 and Article 63 of the constitution of Pakistan, then he or she also cannot become a political party head.

The ruling party has vehemently lashed out at the apex court, arguing that the Supreme Court did not have the right to forbid a person from heading the head of a political party, since political leaders enjoy public mandate and support from members of the party.

The question arises: Is a conspiracy being hatched by the state institutions against the ruling party? In order to fully analyse the scenario, it is necessary to first fully comprehend the facts of the case.

Before the passage of Election Act 2017, there was a Political Party Order 2002 in existence. According to the Political Parties Order 2002, any person can become a member of a political party if he is not in the service of Pakistan and as per the same law a person cannot become a political party office-bearer if he is disqualified to become a parliamentarian under Article 62 and 63 of the constitution of Pakistan 1973.

On 28 July 2017, Prime minister Nawaz Sharif was disqualified by the honourable supreme court of Pakistan to become a parliamentarian under Article 62(1)(f) of the constitution of Pakistan. At that time Political Parties Order 2002 was in existence. Eventually, Nawaz Sharif became disqualified from becoming party’s head as well. Subsequently, it was decided by the ruling party that a new law must be passed in the parliament to repeal the Political Parties Order 2002. Hence with the passage of Election Act 2017, the previous Political Parties Order 2002 was repealed and in this way Mr Nawaz Sharif was able to retain his position of Party head.

It would be more beneficial for the country if the CJP utilises his energies in reforming the judiciary by implementing National Judicial policy 2009, in pith and substance, rather than doing executive’s work

Subsequently, several petitions were filed challenging the vires of the election act 2017 to seek a declaration that a person who is disqualified to become a parliamentarian under Article 62 and 63 of the constitution should also be barred from becoming a political party head. After hearing both the parties the honourable supreme court of Pakistan enunciated its verdict declaring that provisions of Sections 203 and 232 of the Election Act, 2017 are liable to be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution.

As a consequence, it was declared that any person who suffers from lack of qualification under Article 62 or disqualification under Article 63 of the Constitution is debarred from holding the position of ‘Party Head’ by whatever name called and prohibited from exercising any of the powers provided in Article 63-A of the Constitution, as ‘Party Head’ or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party.

The Supreme Court further elaborated that such bar and prohibition shall commence from the date of disqualification and continue till such time that the lack of qualification/disqualification of such person continues in terms of the provisions of Articles 62 and 63 of the Constitution.

The basis or the reasoning behind the Supreme Court’s decision of barring a disqualified person from becoming a party’s head was that Article 17 of the Constitution grants to every citizen the fundamental right to form associations subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order and/or morality. Therefore the Supreme Court held that it was against the axiomatic principles of morality that parliamentary affairs are being administered (either within parliament or from outside), by such persons who lack integrity and sagacity.

The honourable Supreme Court further elaborated that a party head must be sagacious because, under the Article 63A of the constitution, a party head has the power to propose the candidate for Prime ministership and also holds power with respect to the approval of money bills as well as in proposing constitutional amendments. Therefore the court held that in no way can a disqualified person by becoming a party head, dictate his whims to the parliament.

After the decision of the supreme court was announced the ruling party severely criticised the decision as if it was targeted to one party and thus termed it as a biased decision in order to bar Nawaz Sharif from holding any sway in the national politics. The ruling party members also expressed their view that the decision of the supreme court is an attack on the sovereignty of parliament as well as on democratic norms.

The question arises whether the superior courts can declare a law ultra vires or unconstitutional or not.

There is a plethora of judgements in which the honourable supreme court of Pakistan has exercised its judicial review powers and declared a law passed by the parliament ultra vires and unconstitutional.

For instance, in the judgment of Baz Muhammad Kakar versus Federation of Pakistan reported as PLD 2012 SC 923, the honourable supreme court in its judicial review powers under Article 184(3) of the constitution declared contempt of court ordinance 2012 ultra vires and unconstitutional. Similarly the Honourable Lahore High court in its judgement Amin Masih vs Federation of Pakistan reported as PLD 2017 Lahore 610 declared the Federal Revision and Declaration ordinance 1981 ultra vires and unconstitutional and restored the repealed section 7 of Divorce Act 1869.

When the honorable High court under Article 199 of the constitution can declare any law ultra vires then how can the Supreme Court be barred from exercising its judicial review powers keeping in consideration the principle of stare decisis. Already it has been enunciated by the Supreme Court in its judgement reported as PLD 2011 sc 997 Watan party vs Federation of Pakistan that the powers exercised by the Supreme Court under Article 184(3) of the constitution are the same powers exercised by the High courts under Article 199 of the constitution of Pakistan.

It seems that the ruling party is playing political gimmicks to gain sympathy from the general public and by criticising the state institutions it is rather acting as becoming a victim. In the present scenario, journalists, political experts or intellectual circle should refrain from getting any benefit by supporting these conspiracy theories, under the garb of which the Nawaz Sharif’s family is trying to muster public support, lest the support for the Sharif’s family in the prevailing situation may become contagious for the constitutional democracy norms.

However, it is pertinent to note that the criticism against the superior judiciary is justified to an extent when we see the honourable chief justice visiting hospitals as if doing the job of an executive rather visiting the subordinate courts where cases are pending for more than twenty years and the whole administration of justice system is in doldrums. It is also appropriate to mention that there are also no criteria explicitly mentioned for the appointments of judges in the superior judiciary.

It would be more beneficial if the CJP exerts his energies to reform the subordinate and superior judiciary by implementing National Judicial policy 2009, in pith and substance, rather than doing executive’s work.

The writer is a human rights activist and constitutional lawyer

Published in Daily Times, March 23^rd 2018.