Another historic SC verdict



Mohammad Jamil

PRESIDENT PML-N Mian Nawaz Sharif has been barred from heading the party by a three member bench of Supreme Court headed by Chief Justice Mian Saqib Nisar on Wednesday. In its judgment in Elections Act 2017, the court declared that any individual disqualified under Articles 62 and 63 cannot serve as party head. The chief justice said that a person who is disqualified under Article 62 and 63 of the Constitution is not eligible to sign on any document that is needed to nominate someone to the National Assembly or Senate. Almost all political parties and people of Pakistan have supported the verdict, and there is demand that Sharifs should be placed on Exit Control List (ECL). The judges have proved through their verdict that they are independent, and they not afraid of the threats hurled at top judiciary by leaders of the PML-N.
Since PML-N continued vilification campaign against the judiciary, the latter started taking notice of the acerbic remarks and threats by PML-N leaders. Senator Nihal Hashmi has already been sentenced, and more are likely to be indicted. An independent judiciary, unafraid to hold government to account, is an essential element of any strong system to fight against corruption. Without credible rule of law, government officials particularly in the executive, cannot be held accountable for their actions, as all institutions such as FIA, FBR, SBP and anti-corruption departments are beholden to the ruling party. If PML-N leaders do not wean away from maligning and denigrating judiciary in public meetings and media, the opposition parties may start mobilizing the public in favor of the judiciary, which will result in chaos and anarchy. Taking a leaf from history, one can conclude that history may be repeated.
Constitution is indeed the fundamental law of the Country, which defines the authority and jurisdiction of the all the three organs (Legislature, Executive, Judiciary) of the Government. Since all the pillars of the state including Parliament has to act within its limits, only the Constitution is supreme. Secondly, the Parliament can make laws and amend the Constitution, but it cannot alter its basic structure enunciated in the Article 2 (A). In India, there were differences between the Judiciary and the parliament regarding the issue of basic structure; however, Article 13 of the Indian Constitution restricts parliament from making any laws that negate the Fundamental Rights. And both the SC and HC can strike down (Judicial Review) any law made by parliament if it contravenes any other provision of the constitution. Indian Supreme Court had struck down ‘draconian’ Section 66A, whereby the supremacy of the parliament was restricted.
The current political situation rather crisis in Pakistan emerged with Panama Leaks that accused many rulers of various countries and the elite for their corrupt practices and for having stashed money in foreign banks and invested in real estate abroad. Then prime minister Nawaz Sharif had addressed the nation twice and offered himself for accountability. His sons had appeared on the TV and admitted having properties worth millions which they claimed were made through legal and honest means. In the parliament, Nawaz Sharif had suggested to form a judicial commission but did not agree with the opposition parties on the terms of reference of the proposed commission. Anyhow, enough time was given to Sharif family by the SCP for producing documents to prove the money trail, but to no avail. It is worth mentioning that SCP has in the past made PPP governments accountable, and there is no exception.
If the judiciary finds that a given piece of legislation is in conflict with any provision of the constitution, it may strike down the same. In the USA, the Supreme Court can strike down legislation enacted by Congress if it finds the same to be incompatible with the constitution. In Germany, the Constitutional Court is empowered to shoot down constitutional amendments for being inconsistent with the fundamental character of the constitution. In Pakistan, no law can be made which is in conflict with any of the fundamental rights granted by the constitution to the citizens. In this respect, Article 8 of the constitution states “Any law, or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this Chapter [Chapter 1], shall, to the extent of such inconsistency, be void.”
Secondly, no law can be made, which is repugnant to the injunctions of Islam. In this connection, Article 227 of the constitution stipulates: “All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah…and no law shall be made which is repugnant to such injunctions.” It means that Parliament cannot make any law which is inconsistent with the basic character or structure of the constitution – the fundamental law of the land. Open abuse and threats to SCP amounts to sedition and rebellion, which should be stopped immediately. The question is whether clash of interest of an iqama holder protect interest of Pakistan? It should be borne in mind that if anybody defies the Supreme Court’s decisions or judgments, the SC can invoke Article 190 of the Constitution, by which all the institutions are bound to help in implementing its verdicts. Therefore, PML-N leaders should be careful while commenting on the verdicts.
—The writer is a senior journalist based in Lahore.

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