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After the latest verdict

March 01, 2018

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THE Supreme Court’s order of Feb 21, whereby Nawaz Sharif was dislodged as president of the PML-N, has raised many questions that need to be satisfactorily answered in the interest of democratic politics and the judiciary’s independence.

First, it seems necessary to remove the impression that the apex court has encroached upon the jurisdiction of the Election Commission of Pakistan. It may be a wrong impression, but it ought to be erased because the ECP is believed to be wholly responsible for deciding how any election is to be held, and who is to vote and how. The courts come into the picture only when a decision of the ECP or its officials or an election tribunal is challenged for lack of legal justification.

The Supreme Court has invoked in its order against Nawaz Sharif Articles 62 and 63 of the Constitution. It is not clear that this point was adequately addressed during the hearing, and whether Nawaz Sharif’s counsel was given an opportunity to discuss it. Jurists are usually unhappy with decisions made on grounds that are not examined during the hearing.

The court made many weighty observations during the hearing regarding the judiciary’s power to set aside acts of parliament on grounds of inconsistency with the Constitution. However, little has been said about the power of parliament to change the Constitution. Two instances of parliament’s power to undo the effects of judicial verdicts may be recalled.

Senior lawyers have termed the apex court’s argument weak.

When the Quaid-i-Azam was elected to the Central Legislative Assembly of the British colony of India, he realised that the Muslim community was protesting against the Privy Council’s verdict on Muslim waqfs that was not in accordance with Islamic code. To have the apex court’s wrong undone, he came to the legislature with his Musalman Waqf Validating Bill in 1911. The measure was the first private member’s bill to become law. This is how the people’s right to relief from unfair judicial verdicts came to be respected.

In England, some trade union workers were tried and sentenced for squatting in protest against their friends’ eviction from their quarters. The government passed a bill through parliament that legitimised trade union workers’ protest against evictions, and the convicts were released.

The order of Feb 21 says that a person who is held ineligible to head a party cannot do anything for his party, mercifully only during the period of ineligibility, because of the bar against him under Articles 62 and 63 of the Constitution, which are applicable only to members of legislatures. It is not clear how and under which law disqualifications under Article 63 extend to a political party and, if this transition is valid, how will any head of a department/enterprise be exempted?

The order is perceived to interfere with the right granted to all citizens under Article 17 to form and join a political party, subject to reasonable restrictions imposed by law on certain counts. Besides, each political party must account for the sources of its funding.

If a party violates the conditions mentioned in Article 17, the government alone has the authority to make a declaration to this effect and only then does the matter go to the Supreme Court. Nothing is said about Articles 62 and 63 here. Would any reference to the latter articles then amount to making a new law, something outside the judicial domain?

Senior lawyers, including S.M. Zafar and Khalid Anwar, have termed the court’s argument weak. They and other critics must be heard.

Incidentally, it has been pointed out that sadiq and ameen were the attributes of the Holy Prophet (PBUH) for which the Makkans respected him and invited him to resolve their disputes. It has been asked why these qualities are being sought in members of Pakistan’s legislatures, as nobody knows what is hidden in the baggage of the lawmakers.

Some time ago, I had the pleasure of reading in a Supreme Court judgement a most stirring call to move beyond the Objectives Resolution and reject the so-called theory of basic features of the Constitution:

“The temptation to read too much into the Objectives Resolution, whether as the preamble to the Constitution or an operative part thereof by reason of Article 2A, must be strongly resisted. The historical antecedents of the social, political and economic agenda spelt out in the Resolution has already been laid bare. It is in the very nature of constitutions that they must change in ways big and small and whether by way of judicial exposition or in the exercise of the amending power. To artificially bind down a constitution on the basis of a doctrine such as that expounded by the Indian Supreme Court would be a gross disservice to the development of constitutional law.

“… Every institution and each organ of the state has its own role to play. That realisation and acceptance ensures that the constitutional balance is maintained. The court should not do anything that imbalances the Constitution. It should never assume in its own favour that it is the ultimate arbiter in all constitutional matters. That, ultimately, is what the basic features doctrine is about. This court has in the past refused more than once to adopt this theory (or any variant thereof). It ought again to do so.”

Who said that? None other than Justice Saqib Nisar, who fortunately is the country’s chief justice today.

Has anything happened over the last couple of years to justify abandonment of the golden principles enunciated in the excerpts given above? One should like to hope that citizens’ apprehensions regarding the curtailment of their basic rights will be removed in the detailed judgement.

Tailpiece: What has been provoking lawyers to break out in loud laughter is the report that the PTI chief has congratulated his lawyer for successfully pleading his case relating to the Election Act, 2017.

Published in Dawn, March 1st, 2018