SC takes up petitions against Nawaz heading party

ISLAMABAD: The Supreme Court (SC) on Monday declared identical petitions challenging the Election Act 2017 maintainable and issued notices to ousted prime minister Mian Muhammad Nawaz Sharif and other respondents for January 23.

A three-member bench of the apex court, headed by Chief Justice Mian Saqib Nisar and comprising Justice Faisal Arab and Justice Ijazul Ahsen, held the petitions maintainable and issued notices to the respondents.

“We have heard to the learned counsels for the petitioners arguing that the matter involves the questions of public importance relating to fundamental rights of the people enshrined in Article 7 and 19 of the Constitution. We hold that these petitions are maintainable,” Chief Justice Mian Saqib Nisar announced in a short order.

The court issued notices to the respondents, including Nawaz Sharif and others, besides issuing notice to Attorney General for Pakistan for January 23.

Sheikh Rashid Ahmed, head of Awami Muslim League, Syed Nayyar Hussain Bukhari, Secretary General of Pakistan Peoples Party, MNA Jamshed Dasti, Pakistan Justice Party’s Advocate Zulfiqar Ahmed Bhutta, Pakistan Tehreek-e-Insaf Chairman Imran Khan and others had challenged in the SC the Election Act 2017, enacted by parliament last year in October, enabling the ousted prime minister to become the head of the ruling Pakistan Muslim League-Nawaz (PML-N).

The petitioners, while making the Federation as well as Nawaz, the Election Commission of Pakistan (ECP), Senate, etc, as respondents, prayed the apex court to declare all those provisions including sections 9, 10, 203 of the Election Act 2017 as ultra vires of the Constitution.

It is pertinent to mention here that after identical petitions were filed in the Supreme Court, its registrar office had raised objection, asking the petitioners to approach the appropriate forum. The petitioners later filed appeals against the objections of the Registrar.

On November 22, 2017, Chief Justice Mian Saqib Nisar took up the appeals in his chamber and after hearing the arguments of the counsels for the petitioners, dismissed the objections of the Registrar's Office and directed for fixing these petitions to a bench of the apex court for hearing.

The Chief Justice had ruled that it will be for the bench to decide as to whether the instant petitions were maintainable or not. During the course of hearing, Chief Justice Mian Saqib Nisar observed that parliament is the supreme law making body and they cannot overstep the jurisdiction of parliament.

When the counsels for the petitioners pleaded for issuing notices to the respondents, the court observed that parliament is the supreme law making body; hence, it will strictly follow what the law says.

The court observed as under which law the legislation made by parliament can be declared as void and ultra vires to the Constitution. “Notices cannot be issued in such a way and one has to give strong facts that relates to the fundamental rights”, the Chief Justice remarked.

“What more you want us to declare,” Justice Ijazul Ahsen asked Barrister Farogh Nasim, counsel for Sheikh Rasheed Ahmed. The learned counsel cited the court judgment of Panama Papers and referred to an observation made by Justice Ijazul Ahsen stating that “facts should come before the people of Pakistan regarding their fundamental rights”.

Farogh Nasim submitted that his fundamental right be governed by an honest person adding that articles 9 and 17 of the Constitution relate to fundamental rights of the people. “I abundantly stress for enforcement of fundamental rights,” Farogh Naseem contended. He also read out the Article 63 (a) of the Constitution, arguing that the head of the party has absolute control on the membership of the representatives elected on his party ticket.

He also submitted that the amendment in Section 203 is person-specific to enable Nawaz to be in controlling position. In this connection, he cited the PLD 2012 SC 870 in Baz Muhammad Khan Kakarh case wherein the court had struck down the legal provisions for being person specific.

The learned counsel further submitted that under the definition of political parties provided in Election Act 2017, the political party is association of citizens to propagate and influence political opinion and to participate in election for public offices, legislative bodies including assemblies, Senate or the local government.

Sardar Latif Khosa, counsel for PPP, submitted that a disqualified person cannot become the head of a political party. He contended that in parliamentary democracy, a political party regulates the government, nominating the prime minister, chief ministers, ministers in federal and provincial cabinets adding that party is regulated by central executive committee, nominated by the party head as well. He submitted that the party head has a pivotal role in all the affairs. The court issued notices to the respondents and adjourned the hearing until January 23.