ISLAMABAD - The Supreme Court in its detailed judgment in Elections Act, 2017 case has held that a person, who was disqualified to be king, could nevertheless be given a freehand to operate as a kingmaker.

A three-judge bench on Friday delivered the detailed judgment on the petitions against the Elections Act, 2017.  After the enactment of the Act, former prime minister Nawaz Sharif again became head of Pakistan Muslim League-Nawaz.

However, as result of the short order in Elections Act 2017 case announced on February 21, the PML-N leader was again dethroned.

Seventeen petitions including, Sheikh Rashid Ahmed’s, Pakistan Peoples’ Party’s, and the Pakistan Tehreek-e-Insaf’s, had raised objections to allowing Nawaz Sharif to lead the PML-N even after the apex court’s judgment.

The detailed judgment said: “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.”

“It is a cardinal principle of law and justice that what cannot be done directly, cannot be done indirectly,” the judgment added.

The court noted that a conscious effort was 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.

How can it possibly be held that a party head who virtually controls and holds in his hands the fate and prospects of members of his party holding public office need not meet the requirements of articles 62 and 63 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.

The court declared that the sections 203 and 232 of the act cannot be read independently.

It said: “If sections 203 and 232 of the Act, 2017 were to be read independent of the constitutional provisions discussed above, 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 held that sub-constitutional legislation could not be used to circumvent and bypass constitutional provisions more so where the attempt is so blatant and ex facie 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 court refrained from striking down Section 203 of the Act, 2017, in view of the interpretation of the said section in light of articles 62, 63 and 63A of the Constitution, which harmonises it with the general scheme, theme and jurisprudential architecture of the Constitution.

The court noted that in terms of Section 240(g) of the Elections Act, 2017, the Political Parties Order, 2002 was repealed.

Such repeal took effect on 2nd October, 2017, when the Elections Act 2017 was enacted.

It said till that time the Political Parties Order, 2002 along with Section 5 and the proviso thereto, was the law of the land.

The judgment said that Nawaz Sharif after his disqualification as member of the parliament was removed as head of the PML-N in terms of the proviso to Section 5 of the Order, 2002.

Such disqualification was neither time bound nor did it cease to exist by reason of enactment of the Elections Act, 2017.

Therefore, the appointment of Respondent No 4 as president/party head of Respondent No 3 on October 03, 2017, immediately after the enactment of Act, 2017 was patently illegal as he suffered from a disqualification to hold the position of party head, which was intact and fully in force.

The court said it was settled law that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall in so far as it is not inconsistent with the provisions of new Act, be deemed to have been done or taken under the corresponding provisions of the new Act and unless a legislature enacts a new law to be specifically retrospective.



Terence J Sigamony