The Supreme Court Bar Association (SCBA) has challenged a provision of the Elections Act, 2017 before the Lahore High Court. The provision in question allowed ousted Prime Minister Nawaz Sharif to become chief of his Pakistan Muslim League party despite being disqualified by the Supreme Court in the Panama Papers case.
Previously, opposition members failed to stop the controversial bill from being passed despite widespread concerns about its ramifications on the legal structure governing the democratic process of the country.
If a person barred from becoming a parliamentarian due to the operation of constitutional law, it can’t be possible that he is able to become head or office-bearer of a political party.
SCBA secretary Aftab Ahmad Bajwa argues in his petition that “the disqualification recorded by a court of law under Articles 62 and 63 of the Constitution cannot be overtaken by sub-constitutional law,” he goes on to question the election of Mr. Sharif as president of the PML-N, labeling it as being unconstitutional.
Read More: New challenge for Nawaz Sharif: Senate amends Election Act 2017
He says if a person barred from becoming a parliamentarian due to the operation of constitutional law, it can’t be possible that he is able to become head or office-bearer of a political party.
Mr. Bajwa’s argument follows the settled legal principle that “what cannot be done directly, cannot be done indirectly”. He has stated that the election of Mr. Sharif as president of the PML-N has made a mockery of justice and fair play.
He points out that parliament lacks the unfettered powers to bypass the doctrine of basic structure and other constitutional interpretations. He also adds that all the laws relating to elections cannot be articulated through a single legislation.
No provision can be made for the sole purpose of favoring one political party and all the opposition parties have shown their reservations regarding deletion of the conditions of disqualification.
The SCBA secretary pleads that a provision in a democratic form of government cannot lay down unlimited rights in view of Article 17, in which it is clearly stated that every person has a right to form a political party subject to reasonable restrictions imposed by law, such a right cannot be granted because of already existing law.
Read More: Parliament vs. Supreme Court: Long standing resentment coming to the fore
He says no provision can be made for the sole purpose of favoring one political party and all the opposition parties have shown their reservations regarding deletion of the conditions of disqualification. Such legislation can’t be made operative through any procedure of law, he added.
In addition to this, Mr. Bajwa has also challenged Section 232 of the impugned Act, which provides that a disqualification shall not exceed more than five years.
The petitioner asks the court to declare that since Nawaz Sharif has been disqualified by the Supreme Court under Article 62(1)(f) of the Constitution he cannot be elected as the party head or office-bearer of the PML-N. He also asks the court to declare Sections 203 and 232 of the Election Act, 2017 to be completely without jurisdiction, unconstitutional, mala fide, void ab initio and of no legal effect.