ISLAMABAD: In a much awaited judgement, the Supreme Court on Wednesday declared the controversial amendment to the Elections Act, 2017 — which allowed the ousted prime minister Nawaz Sharif to retake the party leadership after being disqualified — as well as all steps, decisions and orders passed by him since his disqualification in July 2017 null and void.

The decision has fuelled speculation about the timely holding of the Senate elections scheduled for March 3 as the validity of Senate tickets issued by the PML-N under the leadership of Mr Sharif has also come under question. Besides, questions are being raised about other major decisions taken by the PML-N since July 28, 2017 including the nomination of incumbent Prime Minister Shahid Khaqan Abbasi.

Shortly after the SC verdict, the Election Commission of Pakistan (ECP) swung into action and removed Mr Sharif’s name from its record as PML-N president with effect from July 28, 2017, the date he was disqualified from holding a public office, while asking Interior Minister Ahsan Iqbal who is acting secretary general of the PML-N to convene a meeting of the party’s central working committee within seven days to elect an acting president and fix a date for the meeting of the council of PML-N within 45 days of the occurrence of the vacancy to elect the president.

• All steps, decisions taken by ex-PM since his disqualification last year declared null and void • ECP meeting to discuss Senate elections today • CJ wonders why judiciary would dub any political leader a thief or a robber

About the next month’s Senate elections, a senior ECP official said the commission would be in a position to comment on it only after its meeting on Thursday (today). He added the fate of PML-N ticket holders would be decided after thoroughly examining the detailed judgement in the Elections Act case.

In its short order, the Supreme Court held that after being disqualified under Article 62(1)(f) of the Constitution, Mr Sharif was barred from holding the office of the party head or PML-N’s president. “As a consequence, it is declared that any person who suffers from lack of qualification under Article 62 or disqualification under Article 63 of the Constitution 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,” announced Chief Justice Nisar who himself authored the short order.

The order was unanimously passed by a three-judge bench of the Supreme Court, headed by Chief Justice Mian Saqib Nisar, on the petitions filed by Pakistan Tehreek-i-Insaf chief Imran Khan, Pakistan Peoples Party, Awami Muslim League chief Sheikh Rasheed Ahmed and several other petitioners to challenge the Elections (Amendment) Act, 2017.

The short order, which was announced in the evening after being reserved in the afternoon, will be followed by a detailed judgement citing reasons. The order explained that the bar and prohibition commencing from the date of disqualification will continue till such time that the lack of qualification/disqualification of such person continues in terms of the provisions of Articles 62 and 63 of the Constitution.

On July 28, 2017, a five-judge SC bench headed by Justice Asif Saeed Khosa had disqualified Mr Sharif as member of parliament under Article 62(1)(f) of the Constitution by holding that former prime minister was not honest.

The short order, however, has opened a Pandora’s box as it also declared all decisions and orders passed by Mr Sharif as its party head illegal. The courtroom started to buzz with whispers the moment the verdict was announced. “What will become of the March 3 Senate elections?” “Will the Senate elections be postponed?”

“Will the candidates to whom he issued party tickets participate in the elections?” “Whether the candidates of PML-N can contest the elections independently?” These were the questions most were heard asking.

“Since the time of withdrawing candidature from the elections have elapsed and since the elections cannot be postponed for the sake of the candidates of a single party because the fundamental right of other parties cannot be infringed, therefore the upcoming Senate elections will be held without the candidates of PML-N,” explained senior counsel Faisal Hussain Chaudhry who also assisted Farogh Naseem in the petition moved by Sheikh Rasheed Ahmed.

“The real purpose is to keep the PML-N away from the elections of the upper house,” remarked a senior counsel on condition of anonymity.

Advocate Mohammad Ikram Chaudhry, one of the petitioners, however, suggested that the Senate elections would have to be postponed.

The apex court, however, was clear when it said that as a result of the declaration, all steps taken, orders passed, directions given and documents issued by Respondent No.4 (Nawaz Sharif) as party head after his disqualification were also declared to have never been taken, passed, given or issued in the eyes of the law.

At the same time the Election Commission of Pakistan was also directed to remove the name of Nawaz Sharif as president/party head of the PML-N from all relevant records.

The verdict explained that Sections 203 and 232 of the Elections Act — provisions which allow a disqualified person to be elected as president of the party — should be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution. These articles put conditions in the shape qualifications and disqualifications for members to enter parliament. For rendering such a role, the court observed, the party head must necessarily possess the qualifications and be free of the disqualifications contemplated in Articles 62 and 63 of the Constitution.

The judgement explained that the election act empowered a party head to perform multifarious functions that have direct nexus with the process of elections to parliament and to matters relating to the affairs of political parties having parliamentary presence. It said that an elected parliament, adorned with the chosen representatives of people on the one hand and the rule of law on the other hand, are the foundations of democracy under the Constitution. Articles 62, 63 and 63-A of the Constitution create an integrated framework for ensuring that business of the parliament is conducted by persons of probity, integrity and high moral character. These conditions are enforced by Articles 62 and 63 of the Constitution by prescribing qualifications and disqualifications for membership to the parliament.

The chief justice also read out the preamble to the Constitution which says: “Sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust”; .… “wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed”; …. “wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”.

CJ clarifies

Earlier during the proceedings, the chief justice reiterated that the Supreme Court was not partisan in any manner and that political leadership was good. “Why we should dub any leader a thief or robber,” the chief justice wondered reiterating that he was not making any clarification or explanation.

But at the same time he regretted that the misstatement by the media always created confusion. The recording of whatever had been stated at the time when Salman Akram Raja presented the point of view of PML-N as his counsel was available, he said. “We are ready to play the entire dialogue that took place on that day,” he observed.

Earlier, Additional Attorney General Mohammad Waqar Rana argued on behalf of Attorney General Ashtar Ausaf, while Farogh Naseem, Dr Babar Awan, Mohammad Ikram Chaudhry and others rebutted the arguments of the federation and the PML-N counsel.

Iftikhar A. Khan also contributed to this report.

Published in Dawn, February 22nd, 2018