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February 9, 2018

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Laws can only be taken down constitutionally: SC

Laws can only be taken down constitutionally: SC

ISLAMABAD: The Supreme Court of Pakistan on Thursday observed that the Election Act 2017 could only be struck down when it will hit any provision of the Constitution.

A three-member bench of the apex court headed by Chief Justice Mian Saqib Nisar resumed hearing in the petitions challenging the controversial Election Act 2017 that paved the way for former prime minister Mian Nawaz Sharif to become head of the ruling PML-N.

Babar Awan, counsel for Pakistan Tehreek-e-Insaf (PTI), submitted that Nawaz Sharif heads the party and under him the cabinet is shuffled and the tickets for Senate were issued.

“Party head for all intent is very powerful but he is disqualified by the court of law,” Babar Awan contended.

Justice Saqib Nisar said that Nawaz Sharif is not a criminal, but disqualified. He asked the counsel for PTI to cite any judgment where the court has struck down the law, which is person specific.

“You are asking us to strike down the Act as it is not in accordance with the spirit of the Constitution,” the chief justice told Babar Awan. Babar Awan then referred to a para of Panama case judgment wherein observation was given against Nawaz Sharif. The chief justice then questioned whether they can strike down the law on the basis of a judge’s observation or the Constitution scheme. Babar Awan said that there is unique situation in the country that a person who is disqualified by the court is head of the ruling political party, adding that the law enacted regarding election reform is person specific. He contended that Article 63A should be read with Article 5 of Constitution.

Justice Saqib Nisar observed that in India Sonia Gandhi and also in PTI and other parties the party head is consulted by the members of the parliament. Babar Awan contended that a person who could not become member of the parliament was heading a political party after the enactment of the Election Act. The chief justice then asked if a person is imprisoned for a criminal offence then can that person control the party from jail?

The PTI counsel submitted that after the Panama case judgment the new law for the election reform was passed and it was all done to do away the effect of the judgment. The chief justice then inquired from Additional Attorney General Waqar Rana whether the original bill has the proviso or not. He replied that it was in the bill which was tabled in the National Assembly and Senate. He further said that it was the same bill which was presented to the president for assent. He then presented record of the National Assembly and Senate debate on Election Act.

Counsel for the PTI submitted that under Section 203 of Election Act, the power in the political party (PML-N) rests with the president. He is relevant in filing for the registration of the party and the certificate of the intra-party election in the Election Commission of Pakistan. He requested the court to strike down the law.

Meanwhile, the chief justice asked if there are other counsels representing political parties or other petitioners at which some counsels stood. Sheikh Ahsenuddin advocate came to the rostrum and informed that he will argue on behalf of the Pakistan Justice Democratic Party (PJDP). “Where it is”, the chief justice asked. “It is in the whole of Pakistan and a large number of people have joined it,” the counsel said, but the chief justice said that he has not seen it.

Sheikh Ahsenuddin said the PJDP is registered with the ECP. He said the party was launched on December 25, 2015 by Iftikhar Muhammad Chaudhry, former chief justice of Pakistan. Meanwhile, the court adjourned the hearing until today (Friday).

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