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Election Act 2017 case: Parliament can’t enact law against Constitution basic structure, says SC

February 16, 2018

ISLAMABAD: The Supreme Court (SC) on Thursday observed that Parliament could not enact law against the basic structure of the Constitution and a person who was disqualified by a court of law was issuing party tickets to candidates aspiring for the upcoming elections for the Upper House of the Parliament (Senate).

A three-member bench of the Supreme Court headed by Chief Justice Mian Saqib Nisar and comprising Justice Umer Ata Bandial and Justice Ijazul Ahsen resumed hearing into the petitions, challenging the controversial Election Act 2017 that paved the way for deposed prime minister Mian Muhammad Nawaz Sharif to become head of the PML-N.

Pakistan Tehreek-e-Insaf chief Imran Khan, Awami Muslim League chief Sheikh Rashid Ahmed, the Pakistan People;s Party (PPP) and 10 others including advocate Zulfiaqar Ahmed Bhutta had filed identical petitions in the apex court, praying for declaring the Election Law 2017 as ultra vires to the Constitution.

During the course of hearing when Salman Akram Raja, representing Nawaz (Sharif was arguing before the court, Chief Justice Mian Saqib Nisar as well as other judges on the bench expressed remarks questioning as to how a disqualified person could lead a party. In

pursuance of the court’s earlier order, a representative of Election Commission of Pakistan (ECP) submitted before the court details regarding the PML-N, PPP as well as PTI whose heads issued party tickets to candidates contesting the forthcoming elections for Upper House of the Parliament (Senate).

Justice Ijazul Ahsen observed that a person who was disqualified by the court was now issuing party tickets for the upcoming Senate elections. Salman Akram Raja, counsel for PML-N however, contended that a person who was elected on this ticket would use his own conscience and would deliver and would not be under the party head’s influence

Justice Ijazul Ahsen however, remarked if the head of the party was polluted, the entire stream would be polluted adding that disqualified individual could gather 10 people, form a party and then use them to further his agenda.

The judge further said that a disqualified person should not usurp the right of others to lead the party adding that qualified persons should not be controlled by a disqualified person.

Justice Ijazul Ahsen in a lighter tone reacted in a poetic manner, “Sir-e-Aiena Mera Aks hey, Pasy Aiena Koi Aur Hey”.

Salman Akram Raja however, contended that the issuance of tickets by a disqualified person for contesting the Senate election did not pollute the whole party.

“Although a disqualified person cannot come to Parliament, he can run the party,” Salman Akram Raja said

But chief justice questioned as to whether a drug peddler or a dacoit could also become a party head. The chief justice further remarked that a person who was behind the bars and had been convicted for heinous crime and serving sentence could control the party affairs from prison as being head of the party.

Salman Akram Raja submitted that the newly enacted election law was not in contradiction with the Constitution and Parliament could amend the Article 17 of the Constitution if deemed necessary.

The learned counsel contended that Article 62 and 63 of the Constitution specifically determined the qualification and disqualification of the parliamentarians while Article 63(a) was about the head and members of political parties.

Chief Justice observed that Prime Minister Shahid Khaqan Abbasi considered deposed PM Nawaz Sharif as his premier adding that they were observing what value party head possessed.

When the learned counsel tried to cite some Indian and US judgments, the chief justice took strong exception asking the learned counsel to refrain from citing foreign verdicts saying Indian as well as US judgments had nothing to do with the Pakistani jurisprudence.

The chief justice noted that verdicts by foreign supreme courts held little value in Pakistan.

However, the PML-N counsel when referred to former South African President Neslon Mandela, the chief justice interrupted saying Nelson Mandela faced a political case and not a criminal trial.

At one point, the chief justice questioned as to how a convict of contempt of court could become a party head.

The chief justice said if a person was convicted in contempt case, he would be considered as disloyal to state. In this respect the CJP asked the learned counsel to go through Article 5 of the Constitution.

“I have disallowed you to cite foreign judgments”, the CJP said.

Justice Umer Ata Bandial asked the learned counsel that the court was repeatedly trying to make clear on the issue however, the learned counsel was not getting the point of the court.

“The point is very simple if you understand it,” Justice Umer Ata Bandial continued saying a disqualified person while obtaining the power was dealing with the transactions of Parliament.

Salman Akram Raja however interrupted and said that the law did not inflict any such restrictions, adding that if someone was convicted, he got punished for that offence but he did not get stripped of his other rights.

“But under Article 62 (1)(f), a disqualified person is not supposed to deal with Parliament if you understand this”, Justice Umer Ata Bandial said.

Meanwhile, the court adjourned further hearing till February 21 after Salman Akram Raja concluded his arguments.

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