ISLAMABAD: A senior counsel representing the ruling Pakistan Muslim League-Nawaz argued before the Supreme Court on Thursday that any decision against the award of party tickets for the March 3 Senate elections would amount to denying the fundamental rights of the aspiring candidates to enjoy the fruits of right of association guaranteed under the Constitution.

“The filing of nomination papers and its scrutiny by the candidates aspiring for the Senate elections who are not tainted with any slur or allegations, falls under the principles of past and closed transaction,” contended Salman Akram Raja during the hearing by a three-judge SC bench headed by Chief Justice Mian Saqib Nisar of petitions challenging the Elections Act 2017 that allows a disqualified person to become head of any political party.

“The people of Pakistan should not be defeated if the court finds any infirmity in the appointment of a head of a political party,” the counsel said, adding that if at all the court was inclined to pass an order in this regard it should issue a judgement with prospective effect.

“There is an involvement of public interest because the people of Pakistan — the ultimate sovereign — will lose their right to be represented in the upper house [of parliament] if their candidates vying for the Senate elections are disenfranchised,” he emphasised.

Justice Ahsan asks PML-N counsel to cite a case law from any country where a disqualified person issues tickets for elections

The arguments were advanced against the backdrop of the Supreme Court’s directive for the Election Commission of Pakistan (ECP) to furnish copies of party tickets for the upcoming Senate elections awarded by three major political parties — the PML-N, Pakistan Peoples Party and the Pakistan Tehreek-i-Insaf.

The court noted that the party ticket to Mushahid Hussain Syed was awarded by Nawaz Sharif as PML-N president, whereas PTI chief Imran Khan issued tickets to his nominees and PPP Secretary General Farhatullah Babar to his party’s candidates.

Justice Ijaz-ul-Ahsan, a member of the bench, asked counsel Raja to cite a case law from any part of the world where a person disqualified by a court of law issued party tickets for Senate elections.

“We should keep the stream of legislators and legislatures clean and pristine,” Justice Ahsan observed, adding that if the head or the source of the stream became polluted the entire stream would be contaminated.

The chief justice observed that the court intended to block by conceiving a situation what disaster would it bring to the country if a drug peddler or criminal or a dacoit or someone convicted of murder became a party head and start controlling the party from prison. “Can a person declared to be disloyal to the Constitution under the contempt of court laws be allowed to become the party head?” he asked.

When the counsel recalled that great revolutionary Nelson Mandela was also put behind bars, the chief justice said he was sent to jail for political reasons and not for any criminal offence.

The chief justice reiterated how sitting Prime Minister Khaqan Abbasi in unequivocal terms had admitted that he was just a nominee and the real prime minister was still Nawaz Sharif. This, he said, suggested what the kind of status or influence Mr Sharif wielded over the party he headed and how everything revolved around him.

“Look at the fiasco we are looking at,” Justice Ahsan said, adding that the counsel was saying that the office of the party head was just a ceremonial post but how a candidate would be beholden to his party chief who issued party ticket to him.

Citing a number of judgements, counsel Raja said the party head acted in furtherance of the rights of the candidates against whom there was no slur or allegation of any kind.

“Why these candidates be penalised for no fault of theirs if they have been granted party tickets in accordance with the law,” Mr Raja argued, adding that all the processes right from issuing party tickets, filing of nomination papers to scrutiny had been completed and what now left was vote.

“These candidates are subjected to the challenge of Articles 62 and 63 and disqualification, if any, will soon be found out and they will eventually be removed,” the counsel said and asked why they should be prevented from contesting elections.

“Parliament is entitled to make any law but the law it makes should be valid,” the chief justice observed.

What the petitioners were asking for, the counsel argued, was double restriction on the political party not to elect its head, adding that disqualification under Article 62(1 f) of the Constitution had only put a bar on the individual not to enter parliament.

From which position the court intended to bar a disqualified member from contesting elections because the rights of the members of parliament could not be curtailed as a common citizen, the counsel said.

Referring to Article 5 of the Constitution which commands loyalty to the state, the counsel argued that the provision became actionable in terms of Article 6 which dealt with high treason only when it rose to that level, adding that Article 204 (contempt of court) should not necessarily be read with Article 5.

But the chief justice observed that Article 6 could not be invoked in this situation since it dealt only with the tinkering with or abrogation of the Constitution. “We are not suggesting invoking Article 6 against your client,” the court told the counsel.

Mr Raja argued that the legislation could only be struck down if it was found expressly militating against the provisions of the Constitution.

Published in Dawn, February 16th, 2018