SC detailed decision: Unfit king cannot be  allowed to make kings

ISLAMABAD: The Supreme Court of Pakistan on Friday held that a person disqualified to be king cannot become head of a political party and can’t be given a free hand to operate as kingmaker as it would amount to making a complete mockery of the Constitution.

The apex court released a detailed judgment in the identical petitions, challenging the controversial Election Act, 2017 that had paved the way to former prime minister Nawaz Sharif to become head of the Pakistan Muslim League-Nawaz (PML-N).

On February 21, a three-member bench of the apex court headed by Chief Justice Mian Saqib Nisar had declared Nawaz Sharif ineligible to continue as head of his own party for being a disqualified person from a court of law.

The court had directed the Election Commission of Pakistan (ECP) to remove the name of Nawaz Sharif as president/party head of the PML-N from all relevant record(s). The court had ruled that all steps taken, orders passed, directions given and documents issued by Respondent No.4 (Nawaz Sharif) as party head after his disqualification on July 28, 2017 are also declared to have never been taken, passed, given or issued in the eyes of the law. Some 13 identical petitions were filed in the Supreme Court including that of the Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, Pakistan People’s Party (PPP), Sheikh Rashid Ahmed of the Awami Muslim League (AML) as well as Zulfikar Ahmed Bhutta advocate that challenged the Election Act, 2017.

On Friday, the court while issuing a 52-page detailed judgment in the matter, authored by Chief Justice Mian Saqib Nisar, ruled that a disqualified parliamentarian cannot become a head of the party and he cannot be given a free hand to operate as a kingmaker as well.

“To hold that a person who is disqualified to be king can nevertheless be given a freehand to operate as a kingmaker, who may despite lacking qualification and without going through the electoral process, act as a puppet master pull the strings and exercise political power vicariously would amount to making a complete mockery of the Constitution, the legislative process, the law, the government and values that we hold so dear and have consciously worked for, defended and incorporated in the Constitution,” the court said in its order.

The court observed that on July 28, 2017, the respondent Mian Muhammad Nawaz Sharif had already incurred a disqualification in terms of the proviso to Section 5 of the Order, 2002, adding that such disqualification was neither time bound nor did it cease to exist by reason of enactment of the Election Act, 2017.

“Therefore, the appointment of Mian Muhammad Nawaz Sharif as President/Party Head of PML-N October 03, 2017 immediately after the enactment of Act, 2017 was patently illegal as he suffered from a disqualification to hold the position of Party Head which was intact and fully in force,” the verdict reads.

The court noted that it has vehemently been argued that Sections 203 & 232 of Election Act, 2017 in their existing form have been inserted in order to favour and benefit one particular individual or in any case, a limited set of politicians who have been or may be disqualified from holding public office in terms of Articles 62 and 63 of the Constitution.

“On consideration of the argument and examination of the material placed before us, the argument appears to be well founded. We get the distinct impression that a conscious effort has been made to protect, shield, cushion and favour a limited set of individuals to save them from the consequences of disqualification arising out of Articles 62 and 63 of the Constitution,” the detailed judgment held.

The court observed that if sections 203 and 232 of the Act, 2017 were to be read independent of the mentioned constitutional provisions, it would open the door for political parties being run and controlled remotely and the legislature being dictated and controlled vicariously by persons who have clearly and unambiguously been barred and prohibited by the Constitution from being a part of the parliamentary, legislative and political process.

The court recalled that it had already held that sub-constitutional legislation cannot be used to circumvent and bypass constitutional provisions more so where the attempt is so blatant and ex facie designed to favour a few. “Person-specific legislation” is frowned at by the courts that operate in an environment of constitutionalism and rule of law.

The court held that this question was examined by this court in the case of Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) at page 353. “In that case, an ordinance was found to have been promulgated as a result of a deal between two individuals for their personal objectives designed to benefit certain classes of individuals,” reads the verdict, adding that this ordinance was struck down by the apex court holding it to be ultra vires the Constitution.

The court ruled that reference in this regard may also usefully be made to Jamaat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549); Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499); Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854); Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563); Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66); Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423); Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956); Asif Islam v. Muhammad Asif (PLD 2001 SC 499); Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133); Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582); Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57); Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain (1986 SCMR 1736); Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473); Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388); Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77); Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130); Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583); Watan Party v. Federation of Pakistan (PLD 2006 SC 697); and Sindh High Court Bar Association’s case (PLD 2009 SC 879). “We would, however, refrain from striking down Section 203 of the Act, 2017, in view of our interpretation of the said section in light of Articles 62, 63 and 63A of the Constitution, which harmonises it with the general scheme, theme and jurisprudential architecture of the Constitution,” the verdict reads.

“We have also noticed that in terms of Section 240(g) of the Election Act, 2017, the Political Parties Order, 2002 was repealed. Such repeal took effect on 2nd October, 2017 when the Act in question was enacted,” says the verdict.

The court noted that till the said date the Political Parties Order, 2002 along with Section 5 and the proviso thereto, was the law of the land.

“There is no denial of the fact that Respondent No.4 (Mian Nawaz Sharif) was disqualified on account of being declared ‘not honest’ in terms of Article 62(1)(f) of the Constitution vide judgment dated July 28, 2017 passed by a five-member bench of this Court,” the court held, adding that on the said date, the law which held the field was the Order, 2002 pursuant to which the name of Respondent No.4 (Nawaz Sharif) was removed by the Commission from its record as party head.

The judgement noted that collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order.

The court observed that it is settled law that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall in so far as it is not inconsistent with the provisions of new Act, be deemed to have been done or taken under the corresponding provisions of the new Act and unless a legislature enacts a new law to be specifically retrospective, and that too with great particularity of language, the courts are not to assume retrospectivity.