SC ruling: Broad interpretation draws widespread concern

Lawyers say such decisions weaken supremacy of civilians

Hasnaat Malik February 22, 2018
Former Prime Minister Nawaz Sharif. PHOTO: REUTERS

ISLAMABAD: Nawaz Sharif term as party head is over, but the debate has only just begun on the potential legal and constitutional implications of whether the Supreme Court can give such a broad interpretation of a Constitutional article.

Some senior lawyers even equated the latest court ruling with ‘rewriting’ of laws. Likewise, some expressed disappointment with the role of all major political parties including the PPP, which also approached the apex court seeking Nawaz’s disqualification as party head.

“At least the PPP would not be expected to come to the apex court as it had a principled stance that political matters should only be decided in parliament. But PPP leaders did the same thing the PML-N had done during their regime,” said one lawyer.

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Former Supreme Court Bar Association President Yasin Azad wondered how the SC can declare that provisions of sections 203 and 232 of the Election Act, 2017 are liable to be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution.

He further contends that this judgment also shows that the confrontation between the executive and judiciary is at its peak and the ultimate losers from this tension are the people of Pakistan.

Azad lamented that courts are supposed to provide relief and not to give unnecessary punishment to citizens, adding that history will tell that whether such judgments are right or wrong.

“I have doubt that whether the general elections can be held in the prevailing situation when tensions between top institutions are on the peak,” he further stated.  He also questioned why the SC did not give protection to the previous acts of Nawaz Sharif by declaring them post and closed matters in view of its earlier judgments. “The court order tried to affect the PML-N’s position, which is on the verge of becoming the largest political party in the senate.”

Pakistan Bar Council Vice Chairman Kamran Murtaza agreed with Azad, opining that Article 17 is not subject to Articles 62 and 63 of the Constitution. He added that such decisions will weaken the supremacy of civilians in the country.

Legal experts say that whenever the court adjudicates on matters of a political nature, it becomes controversial. In the short run, rulings in political matters may get appreciation to the judiciary, but with the passage of time, these judgments loss credibility in public eyes.

Likewise, a senior lawyer referred the July 28 Panama Papers judgment, wherein the SC disqualified Sharif on the basis of his employment with Capital FZE, but now even Imran Khan, a petitioner in the case, is saying that the court ousted Sharif on weak grounds, adding that it would have been better for the SC if the judges had relied on Justice Asif Saeed Khosa’s April 20 judgment in the same case.

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He believes that if the court takes up political cases then it should avoid broad interpretation when there is no clear bar in the law or Constitution.

Another lawyer noted that ex-MNA Haji Nasir Iqbal was disqualified as a parliamentarian in 2010 under Article 62, but the SC recently allowed him to contest elections for the post of mayor in Gujrat because the provisions of Articles 62 and 63 were not applicable to local bodies’ representatives in Punjab. He said that if the SC says that the applicability of these provisions have no legally binding effects in view of the Punjab Local Government Act 2013, how could the same articles be read with the Election Act 2017.