The short order by Supreme Court of Pakistan on February 21, 2018 barring ousted/disqualified ex-Premier, Muhammad Nawaz Sharif, from remaining head of party has once again elicited a heated debate about powers of judiciary and parliament under the supreme law of the land. Many believe that the order has abridged the inalienable, fundamental right given to a citizen under Article 17(2) of the Constitution “to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan”. Proponents of the judgement say that the right to forming a party or becoming member is available to all, but a disqualified person cannot head it in view of 63A of the Constitution.
Parliament cannot make any law that is against the fundamental rights guaranteed in the Constitution and if it does so the High Courts or Supreme Court can strike down the same under the power given by the Constitution. The Parliament can amend Constitution by two third majority and even nullify any judgement of Supreme Court by removing the causes underlying the same — Fecto Belarus Tractor Ltd vs Government of Pakistan (PLD 2005 SC 605).The Constitution of Pakistan envisages trichotomy of powers between the executive, legislative and judicial organs of the State — these cannot intrude into each others’ territory. This principle with all its import and scope is discussed in great detail in Mustafa Impex, Karachi and others vs The Government of Pakistan ((2016)114 TAX 241 (SC Pak.)).
The main problem is the lack of democratic values within our political parties. Individuals, especially with money power, abuse their powers
It is an established principle that the conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution. Strangely, even many seasoned lawyers are misinterpreting the order of the Supreme Court ignoring this established doctrine of harmonious interpretation.
The Supreme Court in its short order held: “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”. This is harmonious interpretation of the Constitution. Nawaz Sharif was disqualified under Article 62(1)(f) of the Constitution by order of Supreme Court passed on July 28, 2017. The Court now held: “…. he 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 main reasoning of the order of the Supreme Court is: “Under Article 63-A of the Constitution, the position of a Party Head of a political party that has representation in, inter alia, the Parliament has a central role in the performance of duties by the Members of the Parliament. For rendering such a role, a Party Head must necessarily possess the qualifications and be free of the disqualifications contemplated in Articles 62 & 63 of the Constitution”.
The main problem, besides law, is lack of democratic values within our political parties. Individuals, especially with money power, dominate. In the wake of this decision, parties need to start in-house purges. In all established democracies, political parties in power or opposition protect the rights of common people. Our legislators help tax evaders and the corrupt to avoid proper scrutiny. In the repealed election laws, there were many mandatory provisions for financial declarations on oath for a candidate but these have been deleted in the Elections Act 2017. In the coming days, anybody can approach the Supreme Court with the prayer that statement of assets and liabilities along with other financial disclosures is a fundamental requirement to apply Article 62 and 63 and it could not have been waived or relaxed through a subordinate legislation — Election Act, 2017.
The Indian Supreme Court in a landmark judgement of February 16, 2018in Lok Prahari vs Union of India barred any convicted person to vote or participate in polls or even continue in office either as a legislator or parliamentarian. It also ordered necessary amendments in Form 26 of Rule 4A of the Conduct of Elections Rules of 1961 requiring candidates to declare on affidavit theirs’ as well as their associates’ sources of income. The critics of judgement of Supreme Court must read the order of Indian Supreme Court. It particularly says:
“This Court in Union of India v. Association for Democratic Reforms & Another, (2002) 5 SCC 294, opined that ‘voter speaks out or expresses by casting vote’ and such a speech is part of the fundamental right under Article 19(1)(a)… Subsequent to the said judgment, Parliament chose to amend the Representation of People’s Act of 1951 by introducing Section 33A. Parliament provided for the disclosure of certain limited information regarding criminal antecedents of the candidate… at an election, but not of all the information as directed by this Court of the above mentioned judgment (regarding educational qualifications, liabilities towards any public financial institutions and assets of the candidates and their dependents)…This Court (in PUCL vs UOI, (2003) 4 SCC 399) held Section 33B (of the Act of 1951) to be beyond the legislative competence of the Parliament. This Court recorded that Section 33A fails to ensure complete compliance with the directions issued by this Court in ADR case”.
Parliament has every right to enact laws but not by violating or offending the fundamental rights of the citizens — it has been done in many provisions of Election Act, 2017. Way back in 1992, the parliament passed Protection of Economic Reforms Act, 1992 that gives a free hand to tax cheats and money launderers to get billions whitened. The parliamentarians instead of protecting the country from tax evaders and corrupt persons have been protecting them and their assets, held in the names of their dependants or benami (name-lenders). Legislators have never shown interest to enact laws for pensions to all citizens and income support to millions living below the poverty line. There is no will on the part of parliament to enact laws for confiscating illegal assets stashed at home and abroad. In these circumstances, is parliament justified in demanding respect from the masses? Are parties ethically justified to seek support and votes from the people? The sloganeering of ‘sanctity of vote’ does not suit those who are themselves offenders, looters and plunderers of national wealth.
The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: [email protected];
Twitter: @drikramulhaq
Published in Daily Times, February 25th 2018.