Person disqualified as king cannot act as kingmaker, rules SC

In its detailed judgement, SC observed that political parties are bound to meet high ethical standards

ISLAMABAD: The Supreme Court has held that morality is a part and parcel of the Islamic Ideology of Pakistan and is included in the expression, “integrity of Pakistan”.

In its detailed judgement against the Election Act 2017, which led to the disqualification of former prime minister Nawaz Sharif from the presidency of his Pakistan Muslim League-Nawaz (PML-N) political party, the court has said that, “To hold that a person who is disqualified to be king can nevertheless be given a freehand to operate as a kingmaker, who may, despite lacking qualification and without going through the electoral process, act as a puppet master, pull the strings and exercise political power vicariously, would amount to making a complete mockery of the Constitution, the legislative process, the law, the government and values that we hold so dear and have consciously worked for, defended and incorporated in the Constitution.”



The 51-page judgment – authored by Chief Justice of Pakistan Mian Saqib Nisar – adds that it is a cardinal principle of law and justice that what cannot be done directly cannot be done indirectly.” The other two members of the bench were Justice Umar Ata Bandial and Justice Ijazul Ahsan.

The judgment mainly focuses on how morality and Islamic teachings are important for the chosen representatives of the country.

Legal experts, however, have noted that the Supreme Court is a ‘court of law and not a court of morality’. Even, SC’s judge Justice Azmat Saeed Sheikh wrote in his Panama Papers verdict that “courts of law are concerned with matters of law, not morality…There can be no manner of doubt that the term ‘honest’ as employed in Article 62 (1) (f) refers to legal honesty, an objective concept and not mere moral or ethical honesty, which is subjective. The courts have never wandered into the realm of morality in this behalf,” he had written at the time.



Lawyers told The Express Tribune that it would have been much better if the SC relied on Article 63 (A) in the detailed judgment rather than focusing on other provisions related to Islamic teachings and morality. When there is already extreme polarisation in society and minorities are under severe threat, the apex court should show restraint while expressing its opinion on public morality in the context of one religion, said a senior lawyer.

Interestingly, the SC’s detailed judgment has also admitted that qualifications under Article 62 (1) may be onerous and hard to meet, but at the same time, it has to be kept in mind that chosen representatives of the people, while exercising powers and authority of the state, ought to exercise the sovereignty of God by way of a sacred trust.

“Faithful adherence to the provisions of Article 62 of the Constitution provides a recipe for cleansing the fountainheads of the State from persons who suffer from character flaws, openly violate the injunctions of Islam, lack adequate knowledge of Islamic teachings, do not practice obligatory duties prescribed by Islam, do not abstain from major sins, are not sagacious, righteous, non-profligate, honest and ameen or convicted for crimes involving moral turpitude or giving false evidence or have worked against the integrity of the country or opposed the ideology of Pakistan. The rationale for incorporation of these qualifications is not hard to understand. When the legislative units of the state are purified at the top, clean leadership would emerge which would administer the country as true and responsible delegatees of the sovereignty and authority of Almighty Allah. This is the constitutional intent and design and the courts are under a constitutional obligation to interpret and enforce it.”

The court further says that the focus of the Constitution is to ensure that only those individuals enter the electoral process who fulfill the prerequisites and requirements spelt out in the Constitution itself to be worthy delegatees of God in order to exercise His powers in trust for Him and for the welfare of the people of Pakistan by joining the political process.

“In the past few years, our jurisprudence has undergone considerable development with reference to qualifications and disqualifications of the members of [Parliament] and provincial assemblies. The members of parliament and provincial assemblies were disqualified for having falsely claimed to possess educational degrees which were fake or bogus, whereas others had practised cheating and fraud in obtaining the requisite educational qualifications. In doing so, they had submitted false declarations and suppressed material information regarding holding of dual nationalities or had concealed their assets and submitted false declarations along with their nomination papers.”



The court also noted that a conscious effort has been made to protect, shield, cushion and favour a limited set of individuals to save them from the consequences of disqualification arising out of Articles 62 and 63 of the Constitution.

“If Sections 203 and 232 of the Act, 2017 were to be read independently of [articles 62 and 63], it would open the door for political parties being run and controlled remotely and the legislature being dictated and controlled vicariously by persons who have clearly and unambiguously been barred and prohibited by the Constitution from being a part of the parliamentary, legislative and political process.”

The court said that it has already held that sub-constitutional legislation cannot be used to circumvent and bypass constitutional provisions, even more so where it is a “blatant” attempt designed to favour a few. “Person-specific legislation is frowned at by the Courts” that operate in an environment of constitutionalism and rule of law.

The judgment said that “party head” has been defined in Article 63(A) of the Constitution to mean any person by whatever name called, declared as such by the party. The party head typically performs various key functions, including but not limited to forming the central working committee, appointing a central executive committee, heading the central parliamentary board of the party, being a leader of the parliamentary party, and other pivotal functions.

“It can safely be said that the president of a political party is the material head of the entire organisation. He is at the centre of all decision-making and exercises all powers inherent in his office to ensure that the organization works in consonance with the constitution and bylaws adopted under the constitution.”

The court noted that perusal of the provisions of Article 63A of the Constitution shows that where a member of the parliamentary party of a political party in a house resigns from membership of his party, or joins another parliamentary party, or votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs in relation to; the election of the prime minister or the chief minister, a vote of confidence or a vote of no confidence, a money bill or a constitutional amendment bill, he may be declared in writing by the party head to have defected from the political party. On making such declaration, the party head can forward a copy of the declaration to the relevant house speaker for onwards transmission to the chief election commissioner.

On receipt of such declaration and confirmation by the commission, the member would cease to be a member of the house. “It is therefore clear and obvious that a declaration issued by the party head can trigger the disqualification of a member of a parliamentary party, and by withholding such a declaration, he can save a member from such consequence. The discretion and power to prosecute or exonerate lies in the hands of the party head.”

The court also noted that a combined reading of Article 63A, various provisions of the Election Act, 2017 and the constitution of the PML-N leads to the inescapable conclusion that the party head enjoys a central, pivotal and decisive role and position within the party in the electoral process, and in parliament through the parliamentary party.

“He is the linchpin and pivot around which the entire structure of the party revolves, through which power flows to all organs, constituents and activities of the party. He has direct power, influence and control over how the party shall act and function within and outside the Parliament. One small example of his importance is that all material actions and decisions require his approval and it would not be an exaggeration to say that he, in essence, calls the shots in all important and major aspects and decisions of the party including awarding of party tickets.”

The judgment goes on to say it is an “absurd” suggestion that a party head who virtually controls and holds in his hands the fate and prospects of members of his party holding public office, all of whom should fulfil the requirements of articles 62 and 63, need not meet the requirements of the said articles himself. Such an interpretation would “not only be contrary to and in conflict with the entire scheme, focus and theme of the Constitution…but would also defeat the very purpose of inserting the said provisions in the Constitution”, says the judgment.



National party concerned

Interestingly, National Party Punjab President Ayub Malik’s petition challenging the vires of section 202(2), section 61(1), section 132 (3)(b) & (c) was clubbed along with the petitions challenging the appointment of Sharif as PML-N president, but the detailed judgment issued on Friday only mentioned the petition number of the National Party without any orders regarding the sections it had cited.

NP had not challenged Section 203, but paragraph 21 of the detailed judgment listed them among petitioners that had done so.

Talking to The Express Tribune, Malik made it clear that they did not challenge section 203 of Election Act 2017 as they have no issue with Sharif heading a political party, and the SC made an error in the judgment by wrongly attributing other petitioners’ arguments with them.

He said the short and detailed orders issued only related to Sharif and no relief is given to their issue, which was that sections of this act like increase the deposit fee for candidates of the NA and PA to Rs30,000 and Rs20,000 from Rs4,000 and Rs2,000, respectively. Increase in forfeiture of deposit fee and an increase in allowable election expenses to four million and two million for National Assembly and Provincial assembly, respectively, are among the other issues for NP.

“Non-issuance of any orders in respect of the above sections will seriously deprive the working class of the opportunity to take part in the next elections and politics will remain confined to political elites which constitute less than 1% of the population,” he further stated.