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Allowing disqualified person to act as party president will be mockery of the Constitution: SC

03 March, 2018

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ISLAMABAD: The Supreme Court observed on Friday that holding a disqualified person to be a king amounted to giving him a freehand to operate as a kingmaker.

“And such a person despite lacking qualification and without going through the electoral process acts as a puppet master who pulls strings and exercises political power vicariously,” the court said in a detailed judgement explaining reasons why former prime minister Nawaz Sharif had been debarred from heading the Pakistan Muslim League-Nawaz on Feb 21.

The judgement was issued on a set of petitions moved by a number of political parties and citizens, including Pakistan Tehreek-i-Insaf chief Imran Khan, Awami Muslim League Sheikh Rashid and the Pakistan Peoples Party.

“Allowing a disqualified person to act as party president will be a 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,” said the 51-page verdict, authored by Chief Justice Mian Saqib Nisar.

It explained that the underlying theme and focus of the Constitution were to ensure that only those individuals entered the electoral process who fulfilled the prerequisites and requirements spelt out in the Constitution itself to be worthy delegates of Almighty Allah to work for the welfare of the people of Pakistan.

The Supreme Court, however, made it clear that it would refrain from striking down Section 203 of the Elections Act, 2017 — which allows a disqualified person to head a political party. The reason it explained, was the court’s interpretation of the section in the light of Articles 62, 63 and 63A of the Constitution, which harmonised it with the general scheme, theme and jurisprudential architecture of the Constitution.

The judgement said: “Candidates who wish to offer themselves through election to the parliament or the provincial assemblies play a fundamentally important role. In most instances following the modern democratic norms and remaining within the framework and underlying theme of the Constitution, they form themselves into the political parties.

“Thus the political parties are vehicles which provide intending candidates the means and the roadmap to reach the destination of membership of the legislature and thereafter a possible chance of being a part of the government formed by the party which enjoys the maximum number of seats in the parliament.”

Referring to party heads, the judgement explained that it would be absurd and illogical to hold that the party head who virtually controlled and held in his hands the fate and prospects of members of his party holding parliamentary or other public office who fulfilled the requirements of Articles 62 and 63 of the Constitution, yet he needed not meet the requirements of these provisions himself.

“Such an interpretation will not only be contrary to and in conflict with the entire scheme, focus and theme of the constitution but will also defeat the very purpose of inserting Articles 62 and 63 in the Constitution,” it said.

The verdict explained that the party head enjoyed the power to impose disciplinary punishment as well as exonerate and thus virtually controlled the parliamentary party which was evident from the power available to him under Article 63A of the Constitution.

The judgement said: “The provisions of Sections 209, 210 and 216 and the general scheme of the Elections Act also substantiate, reinforce and buttress the finding that the party head wields decisive and controlling powers within his party.

“Thus the party head directly controls fundamental matters like the formation of the government, appointment of the prime minister, federal ministers, ministers of state, advisers, chief ministers, provincial ministers, provincial advisers, governors, president, the mode and manner in which members of his party would vote in matters that come before the parliament and the Senate or the provincial assemblies.

“The argument that a party head can exist beyond the ambit, purview and scope of the constitutional and legal framework within which he operates if accepted would lead to illogical and unreasonable results which are not visualised or intended by the framers of the Constitution.

“Moreover, Article 63-A has been inserted in the Constitution to regulate working of parliamentary parties of political parties represented in the parliament. To assert that Article 63-A has no nexus, link or connection with Article 17 of the Constitution which furnishes the very basis to form and join political parties, is not only illogical but also irrational and untenable.”

The verdict also declared well founded the arguments by the petitioners that Sections 203 and 232 of the Elections Act in their existing form had been inserted to favour and benefit one particular individual or in any case, a limited set of politicians who had been or might be disqualified from holding public office in terms of Articles 62 and 63 of the Constitution.

“We get the distinct impression 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,” it added.

The judgment said that if Sections 203 and 232 of the Elections Act were to be read independent of the constitutional provisions, it would open the door for political parties being run and controlled remotely and the legislature being dictated and controlled vicariously by persons who had clearly and unambiguously been barred and prohibited by the Constitution from being a part of the parliamentary, legislative and political process.

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