ISLAMABAD: Chief Justice Mian Saqib Nisar began the new year by reiterating the supremacy of parliament as the top-most law-making body in the country, and said that courts should stay away from its jurisdiction.
However, at the same time, a three-judge bench of the Supreme Court headed by the chief justice and including Justice Faisal Arab and Justice Ijazul Ahsan, also declared ‘maintainable’ 13 separate petitions that were concerned with the enforcement of fundamental rights, such as Article 9 that guarantees the security of citizens and Article 17 which deals with freedom of association.
The petitioners — including Pakistan Tehreek-i-Insaf (PTI) chief Imran Khan, the Pakistan Peoples Party (PPP), Sheikh Rashid Ahmed and ten others — had challenged the Elections Act 2017, which allows a disqualified parliamentarian to hold any party office.
After hearing senior counsel Farogh Naseem and Sardar Latif Khan Khosa, who represented Sheikh Rashid and the PPP respectively, the SC decided to issue notices to the respondents.
A notice was also issued to Attorney General Ashtar Ausaf, since the interpretation of constitutional provisions was involved and the vires of the law had to determined, i.e. whether it was validly adopted by parliament or not.
The chief justice told Barrister Naseem that he had to cross the threshold of maintainability and convince the court that the petitions concerned a matter of public importance.
The chief justice recalled that in a recent judgement disqualifying PTI leader Jahangir Tareen, the apex court had highlighted that the sanctity of parliament should not be impinged or compromised.
Referring to the Political Parties Order 2002, the chief justice said that while going through the cases against Imran Khan and Jahangir Tareen, the court felt that this legislation needed to be improved by parliament, as certain things in this law are not clear or coherent.
Barrister Naseem referred to Justice Ahsan’s judgement in the Panama Papers case, where he had held that it was the fundamental right of citizens to be governed in accordance with the law, by those who fulfill the requirements of the Constitution and the law and whose financial deals, earnings and expenditures were open to public scrutiny to show they meet the test of honesty, integrity, financial probity and bona fide dealings.
“It is high time that standards were set and systems were put in place to develop a culture of accountability at all levels in order to cleanse our system and institutions from the evils of corruption, money laundering, loot and plunder of national resources by a few, irrespective of their rank or status in the system,” Justice Ahsan had written.
It is, therefore, a fundamental right of the people, under articles 9 and 17, that they be governed by honest people, the counsel argued, adding that the fundamental rights of the people would be jeopardised if Nawaz Sharif – who was disqualified under Article 62 (1) (f) of the Constitution, someone held to be not honest and truthful – be allowed to continue as head of a political party.
The chief justice observed that Mr Sharif was no longer in parliament since he had been declared to not fall in the purview of Article 62(1)(f). It is not necessary that a party head be a member of parliament, the chief justice pointed out, and asked how the counsel can extend the limits of Article 9 to the right of governance.
The counsel argued that what could not be done directly should also not be done indirectly.
Justice Ahsan observed that what the counsel really wanted to say was that in our political hierarchy, a party head plays a pivotal role and exerts influence in a manner that he controls all major decisions taken by the party.
The counsel argued that the amendments made in the Election Act 2017 were person specific and referred to the 2012 Baz Mohammad Kakar case, saying the court had already held that person specific amendment made to the law surreptitiously could be struck down. Senate had also passed a resolution against the law, the counsel reminded the court and also cited the 2010 NRO case in his arguments.
Because it is the largest political party in the country, the PML-N should have an honest party head, he maintained.
The chief justice wondered if the party to which the counsel belonged had voted in favour of the law and commented that it was common in parliament that even one vote is good enough for passing a law. He went on to say that the jurisprudence developed in the Kakar case is not something to be relied on by the courts in other cases.
However, he observed that the courts were bound to follow every word of these judgements till the time they were re-visited.
Later, Sardar Latif Khosa argued that the subsistence of the Election Act 2017 will demolish the very essence, spirit and true meaning of the Constitution and irreversibly impair the concept of the welfare state. He added that the system of political parties is such that the party head controls all of its affairs, especially when the central executive committee (CEC) under the party head nominates candidates for the offices of prime minister, governors and ministers etc.
Justice Ahsan asked the counsel if he wanted to say that CECs of political parties do not have independent identities because they are dictated by their respective party heads. The counsel replied that CECs are controlled by the parties.
This is happening in all political parties, the chief justice said.
The Supreme Court held the arguments of Advocate Mohammad Ikram Chaudhry, who appeared on behalf of the Justice Party of Mohammad Munsif Malik, as without merit when he said that amendments in the law require a political party to show at least the thumb impressions of 2,000 members and that parliament had no right to make such a law.
The court observed that to this affect, amendments to the law are good for democracy as they help eliminate one-man parties. The apex court then postponed further hearing till Jan 23.
Published in Dawn, January 2nd, 2018