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Petitioner: (1) Zulfiqar Ahmed Bhutta (2) Sheikh Rasheed Ahmed (3) All Pakistan Aam Admi Party through its Chairman, Ch. Nasir Mehmood and Others VS Respondent: (1) Federation of Pakistan through Secretary, Ministry of Law
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mian Saqib Nisar, Umar Ata Bandial Title:(1) Zulfiqar Ahmed Bhutta (2) Sheikh Rasheed Ahmed (3) All Pakistan Aam
Admi Party through its Chairman, Ch. Nasir Mehmood and Others vs (1) Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs and others (2) Federation of Pakistan through Secretary Cabinet Division and others Case No.:Constitution Petitions No.37 to 45, 47 to 51 & 54 of 2017 And CM Appeal No.244 of 2017 in Const. Petition No.Nil of 2017 Date of Judgment:2018-03-02 Reported As: 2018 SCP 1100 Result: Petition allowed Judgment MIAN SAQIB NISAR, CJ-. The Petitioners before us are public spirited citizens and political parties which are a part of the political landscape of Pakistan. Both sets of Petitioners have a direct interest in compliance with and implementation of provisions of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The grievance of the Petitioners arises out of certain provisions of the recently promulgated law under the name and style of Election Act, 2017 ("the Act, 2017"). The Act, 2017 which was enacted to amend, consolidate and unify laws relating to conduct of elections came into force on of September 2017. 2. A brief background of the controversy before this Court is that Respondent No.3-Pakistan Muslim League (N) is the largest political party (in terms of seats) in the National Assembly of Pakista n. Pursuant to its majority in the National Assembly it formed a Governmen t after the General Election, 2013. Respondent No.4 (Muhammad Nawaz Sharif) was its President. He was elected as the Prime Minister of Pakistan. On 03.04.2016, the International Consortium of Investigative Journalists (ICIJ) released some information and documents taken from the database of a law firm by the name of Mossack Fonseca & Company, based in Panama. The said information was published in the Print and Electronic Media worldwide on 04.04.2016. It disclosed details of a large number of offshore companies established in different countries and tax havens. Such offshore companies were ostensibly owned or controlled by various persons and entities in different parts of the world. The information coming into public domain revealed that a number of political and public figures and their families belonging to different countries owned valuable assets in various parts of the world, through these offshore companies. The names of2nd
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the children of Respondent No.4 (who was at the relevant time, the sitting Prime Minister of Pakistan) also featured in the disclosed information/documents. This information was previously not known publicly nor was it disclosed to any competent authority. 3. The public uproar that followed forced some political figures around the world to tender resignations from public offices held by them. Others submitted explanations in Parliaments, offered themselves for accountability and/or provided proof that the offshore companies and the assets acquired through such offshore companies had been procured through legitimate means and lawful sources. In some countries, investigations were initiated to inquire into the allegations of ill gotten gains, corruption, money laundering, financial crimes and illegal financial activities. 4. Similar allegations were leveled against Respondent No.4 and his children. He submitted explanations on a number of occasions including one, before the Parliament in his address to the Parliamentarians and another, during an address to the Nation on radio and television. However, owing to their contradictory nature, such explanations failed to convince many. Some of them approached this Court under Article 184(3) of the Constitution. Respondent No.4 submitted to the jurisdiction of this Court, did not raise any objection and waived Constitutional privilege (if any). The matter was taken up and heard by a five member Bench of this Court. 5. After a detailed hearing which continued for months on end, the matter was decided by this Court vide its judgment dated 20.04.2017. In the said judgment, two out of five learned Members of the Bench namely Asif Saeed Khan Khosa and Gulzar Ahmad, JJ disqualified Respondent No.4 in terms of Article 62(1)(f) of the Constitution. However , three learned Members of the Bench namely Ejaz Afzal Khan, Sh. Azmat Saeed and Ijaz ul Ahsan, JJ decided to constitute a Joint Investigat ion Team (JIT). The mandate of the JIT was to conduct a detailed investigation into the allegations against Respondent No.4 and members of his family , identify the various assets owned by them directly or indirectly through offshore companies, front men, etc and submit a report within sixty days. The judgment of this Court is reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265). As mandated by this Court, the JIT proceeded with its inquiry / investigation. On expiry of sixty days and completion of its investigation, the JIT submitted its report spread over 10 volumes before this Court. On examination and scrutiny of the report, the aforenoted three learned Members of the Bench pronounced their judgment on 28.07.2017. The said learned Members also disqualified Respondent No.4 as a Member of the Majlis-e-Shoora (Parliament) in terms of Article 62(1)(f) of the Constitution. The net result of the judgment of 28.07.2017 was that all five learned Judges of this Court unanimously disqualified Respondent No.4 in terms of Article 62(1)(f) of the Constitution. In addition, they directed the National Accountability Bureau (NAB) to file various References inter alia against Respondent No.4, some of his children, son in law and others with a direction that such References be decided by the Accountability Court within a period of six months from the date of filing of the References. We understand that the directions of this Court in so far as they relate to filing of the References by the NAB have been complied with. Various References against Respondent No.4, some of his children, son in law and others have been filed in the Accountability Court and proceedings are underway. 6. It may be pointed out that subsequently Respondent No.4 and others preferred Review Petitions before this Court against the judgment dated 28.07.2017. These were dismissed vide order dated 15.09.2017. Consequently , the order of this Court recorded on 28.07.2017 attained finality which inter alia included a declaration that Respondent No.4 was not "honest" in terms of Section 99 (f) of the Representation of People Act, 1976 and Article 62(1)(f) of the Constitution. Therefore, he was disqualified to be a Member of the Majlis-e-Shoora (Parliament). The Election Commission of Pakistan (the Commission) was also directed to issue a notification disqualifying Respondent No.4 from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter , he ceased to be the Prime Minister of Pakistan. 7. As a consequence of the judgment of this Court, the Commission de-notified Respondent No.4, who stepped down as Prime Minister of Pakistan. 8. As noted above, Respondent No.4 at all material times was the President of Respondent No.3-Pakistan Muslim League(N) which is a political party registered with the Election Commission of Pakistan. In view of the first proviso to Article 5 of the Political Parties Order , 2002 (Order , 2002) , the Respondent No.4 could not remain an office
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bearer or President of Respondent No.3 by reason of his disqualification under Articles 62 and 63 of the Constitution. Accordingly , he stood removed from the said office as a consequence of the aforenoted judgment of this Court and by operation of the relevant law. In view of the relevance of Section 5 of the Order, 2002 in the matter before us, the same is reproduced below:- "5. Membership of political parties.- (1) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party: Provided that a person shall not be appoin ted or serve as an office-bearer of a political party if he is not qualified to be, or is disqualified from being, elected or chosen as a member of the Majlis-e-S hoora (Parliament) under Article 63 of the Constitution of the Islamic Republic of Pakistan or under any other law for the time being in force. Provided further that the condition of educational qualification being a graduate possessing a bachelor degree or equivalent laid down for a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall not be applicable to an office-bearer of a political party . (2) Where a person joins a political party, his name shall be duly entered in the record of the political party as a member and shall be issued a membership card, or any other document showing his membership of such political party. (3) A person shall not be a member of more than one political party at a time. (4) A member of a political party shall have the right of access to the records of the political party . [Underlining is ours] " 9. It is alleged by the Petitioners that in order to undo the effect of the judgment of this Court as also the first proviso to Section 5 of the Order , 2002 (reproduced and underlined above) the ruling party (PML(N) introduced a Bill in the Senate of Pakistan titled Election Act, 2017. In the proposed Bill, a large number of Election Laws including the Order , 2002 were to be repealed and replaced by the Act, 2017. 10. For the purpose of present controversy , two Sections of the Election Act, 2017 are significant. For the sake of convenience, the same are reproduced below:- "203. Membership of political parties. --(1) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party . (2) Where a person joins a political party, his name shall be entered in the record of the political party as a member and shall be issued a membership card, or any other document showing his membership of the political party. (3) A person shall not be a member of more than one political party at a time. (4) A political party shall encourage women to become its members. (5) A member of a political party shall have the right of access to the records of the political party , other than the record of another member . 232. Disqualification on account of offences. --Where a person has been convicted for any offence under this Act or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall, if the Commission is of the view that circumstances so warrant and makes an order to that effect, be disqualified for such period not exceeding, five years as may be specified in the order from being, or being elected as a Member of an Assembly , the Senate or a local government." 11. It appears that the Bill was voted in the Senate of Pakistan on 22.09.2017. We have been informed that various amendments in the said Bill were proposed by some political parties, including the retention of the aforenoted proviso to Section 5 of the Order , 2002. It may also be noted that except for the proviso, Section 5 of the Order , 2002 was retained in its original form in the proposed Bill. However , it appears that most of the amendments suggested by various parties were not incorporated. The Petitioners have vehem ently argued that proceedings before the Senate of Pakistan were fundamentally questionable and flawed. Howe ver, we do not wish to enter into this controversy in due deference to the provisions of Article 69 of the Constitution especially so where no specific grounds have been urged that may justify probe and scrutiny of the process by which the Bill was passed in the
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Senate of Pakistan. We have gone through the record of debates on the Bill and find that no purposeful debates on the Bill took place in the Senate of Pakistan. Nevertheless, we would not like to delve deeper in the said aspect of the issue. 12. After passage of the Bill in the Senate of Pakistan, the Election Bill, 2017 was tabled in the National Assembly on 02.10.2017. It was passed on the same day . It also received Presidential assent the same day . 13. On 03.10.2017, the PML(N)-Respondent No.3 amended its constitution and elected Respondent No.4 as its President. It is alleged by the Petitioners that the Election Act, 2017 which beca me part of the Statute Book on 02.10.2017 was enacted and amendments in the constitution of Respondent No.3 undertaken on 03.10.2017 were person specific and undertaken to favour and accommodate one individual namely Respondent No.4 (Muhammad Nawaz Sharif). 14. In the above background, the Petitioners challenged Sections 203 & 232 of the Election Act, 2017 reproduced above. It has inter alia been prayed that the said Sections may either be struck down being ultra vires the Constitution or at least read and interpreted in a manner that may harmonize their meaning, scope and interpretation with Constitutional provisions which in any event have primacy over statutory provisions. 15. Mr. Farough Naseem, learned ASC, appearing for the Petitioner in Constitution Petition No.38 of 2017 has argued that on its bare reading Section 203 of the Election Act, 2017 per se does not expressly permit any person who has been disqualified by a Court of law to remain or become an office bearer of a political party. However, if it is interpreted to mean that Section 203 does not debar a disqualified person from being an office bearer of a political party then the said Section is liable to be struck down as unconstitutional or alternatively it is liable to be read down by holding that the said provision does not permit a person who has been disqualified by a Court of law to become or remain a Member of the Parliament or to be or remain an office bearer or head of a political party. He maintains that a person who has been disqualified from being elected or chosen as a Member of the Majlis-e-Shoora (Parliament) under Article 62 or Article 63 of the Constitution or under any law for the time being in force cannot become an office bearer of a political party either. This is so because a person who has been declared not to be honest or ameen if made an office bearer, including head of a political party, would in effect be heading individuals who may be Members of the Senate of Pakistan and the National or Provincial Assemblies and do not suffer from any of the aforenoted disqualifications. In other words, a person who is not honest and ameen will head and lead many who may be honest and ameen. This according to him is absurd, a paradox and a contradiction in terms. 16. The learned counsel for the Petitioner has also drawn our attention to Article 63(A) of the Constitution and submitted that a Party Head enjoys wide-ranging powers in matters where Members of his party vote or abstain from voting in the House contrary to any direction issued by the Parliamentary Party to whom he belongs in relation to election of the Prime Minister or the Chief Minister , a vote of confidence or no confidence, a Money Bill and a Constitutional Amendment Bill. He has pointed out that where the Party Head declares that a Member of his party has defected and such declaration is sent to the Presiding Officer and the Chief Election Commissioner , it can ultimately lead to his disqualification. He further maintains that the Party Head also exercises, control and takes decisions regarding how members of his party would vote in the context of Constitution and other laws. The learned ASC further maintains that citizens of Pakistan have a constitutional right to join any political party. According to him, this right would be jeopardized if the political party which they may want to join is headed by a person who has been disqualified by way of a declaration issued by a Court of competent jurisdiction specially so where such declaration reflects on the honesty of such person. He submits that citizens of Pakistan have a fundamental right that a person who has been disqualified under the Constitution should not head a political party or have the power to control Parliamentarians in the Senate of Pakistan, the National Assembly and/or the Provincial Assemblies. Therefore, any interpretation of the Constitution and the law to the effect that despite a declaration by a Court of competent jurisdiction that a person is not honest and ameen, and hence disqualified to be a Parliamentarian, he can still become the head of a political party, would not only amount to negating the spirit of the Constitution but also clearly violate the fundamental right of freedom of association entrenched in Article 17 of the Constitution as also the fundamental rights enshrined in Article 14 of the Constitution. He maintains that to become a Member of a Political Party which is headed by a person declared to be lacking
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honesty by a Court of competent jurisdiction also militates against the fundamental right of dignity of man to which each citizen is entitled. He finally maintains that the act whereby Respondent No.4 has been made the Party Head of PML(N) is clearly violative of Articles 62, 63 & 189 of the Constitution. 17. Sardar Muhammad Latif Khan Khosa, learned ASC, representing Pakistan Peoples Party (in Constitution Petition No.44 of 2017) has made similar submissions and added that insertion of Sections 203 and 232 of the Election Act, 2017 in so far as they are designed and intended to defeat, bypass and nullify the provisions of the Constitution (specially Articles 62 and 63 of the Constitution) are patently mala fide and unconstitutional as they are person specific and intended to favour , accommodate and benefit one individual. He further submits that Section 203 is tailored to defeat and override not only the provisions of Articles 62 & 63 of the Constitution, but also the judgment of this Court in the case of Imran Ahmad Khan Niazi (ibid) . He has finally submitted that the impugned Legislation is also un-Islamic and violates Articles 2A and 227 of the Constitution. 18. Mr. Babar Awan, learned ASC, appearing for the Petitioner in Constitution Petition No.49 of 2017 while adopting the submissions earlier made, has submitted that any deletion from or incorporation in an existing Statute or enactment in so far as it is ultra vires the Constitution is void. He further submits that it is settled law that sub constitutional legislation cannot circumven t the effect or applicability of constitutional provisions. He maintains that provisions of Section 203 of the Election Act, 2017 offend against the provisions of Article 227 of the Constitution and therefore the same are liable to be set aside. He maintains that the provision in question has superficially been designed to benefit one individual i.e. Respondent No.4. He adds that the principle of law has been settled by this Court that person specific legislation is untenable. Reference in this regard has been placed on Pakistan v. Muhammad Umar Khan (1992 SCMR 2450 ) and Federation of Pakistan v. Mubashar Hassan (PLD 2012 Supreme Court 106). He maintains that the Constitution is based upon trichotomy of powers and it recognizes three pillars of the State namely the Parliament, the Executive and the Judicature. Any attempt to subvert, bypass or nullify the effect of any provision of the Constitution by the Parliament or the Executive is liable to be struck down by this Court which being the custodian of the Constitution enjoys the constitutional mand ate to interpret the Constitution. He further maintains that interpretation given by this Court to the provisions of the Constitution are final and in terms of Article 190 of the Constitution all Executive and judicial authorities throughout Pakistan are required to give ef fect to such interpretations and also act in aid of this Court. 19. Mr. Ahsan ud Din Sheikh, Petitioner in Constitution Petition No.43 of 2017, has submitted that Respondent No.4 was disqualified on 28.07.2017. On the said date, the Order , 2002 held the field. Therefore, on the date in question, Respondent No.4 incurred a disqualification in terms of the proviso to Section 5 of the Order , 2002. He submits that such disqualification emanated from and was triggered by a constitutional disqualification which could not be removed either retrospectively or through ordinary legislation. He further submits that incorporation of Sections 203 & 232 in the Election Act, 2017 is an attempt to do indirectly what could not be done directly . Such course of action is prohibited under the law. Reference in this regard has been placed on Contempt Proceedings against Chief Secretary , Sindh and others (2013 SCMR 1752 ). 20. Developing his argument regarding the effect of disqualification vide judgment of this Court dated 28.07.2017 when the Order , 2002 was in force and Respondent No.4 had admittedly incurred a disqualification under the first proviso to Section 5 of the Order , 2002, the Petitioner has drawn our attention to the provisions of Article 264 of the Constitution. He has maintained that wher e a law is repealed or deemed to have been repealed, it does not, except as otherwise provided in the Constitution, affect any right, privilege, obligation or liability , acquired or incurred under the law, nor does it affect any penalty , forfeiture or punishment incurred in respect of any offence committed against the law. He has further referred to Section 6 of the General Clauses Act, 1957 to argue that since Respondent No.4 had already incurred a disqualification, repeal of the Order , 2002 and enactment of Election Act, 2017 could not wash away the disqualification which had already been incurred. He has finally submitted that the rights enshrined in Article 17 of the Constitution are circumscribed by and subject to the law and public morality . He maintains that appointment of a person who had been disqualified by the highest Court of the land in terms of Article 62(1)(f) of the Constitution pricks the conscience of citizens and impinges on public morality .
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21. The learned ASCs and the Petitioners in person in Constitution Petitions No.41, 42, 44, 45, 47, 50 and 54 of 2017 have also made submissions to the same effect and adopted the aforenoted arguments. They have however additionally argued that Section 203 of the Election Act, 2017 and the amendment made therein violates the provisions of Article 17 of the Constitution in so far as it is meant to render the provisions of Articles 62 & 63 of the Constitution redundant. Further , party tickets have been issued by Respondent No.4 which shows that he wields and exercises influence and control over the party and members of the party who also happen to be Members of the Parliament. This makes a mockery of the constitutional provisions, public morality and the salutary principles of free and fair elections which are sine qua non for a democratic dispensation. 22. Mr. Salman Akram Raja, learned ASC, representing Respondent No.3-Pakistan Muslim League (N), has submitted that omission from Section 203 of the Election Act, 2017 of an earlier restraint on appointment as Party Head of a person as contained in proviso to Section 5 of the Order, 2002 does not constitute violation of any constitutional provisions. He submits that the said proviso was a peculiar provision added at a particular phase of our history and did not articulate a constitutional test against which Section 203 of the Act, 2017 is to be measured. He added that freedom of association and freedom of speech imply that there is freedom to members of a political party to freely determine the terms of their association and choose office-bearers including Party Head of their own liking. He maintained that the constitution of a political party is its internal matter and should be left to the will and choice of its members. He argued that restrictions imposed by Articles 17 and 19 of the Constitution are built in the said Articles and no further restrictions or restraints can be imported, transposed or read into the said Articles unless expressly provided by the Constitution. In support of his contentions, the learned ASC has placed reliance on Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). 23. According to the learned ASC, the effect of lack of qualification or disqualification as provided in Articles 62 and 63 of the Constitution is limited to the effect that is expressly provided in the Constitution namely disqualification from being elected as Members of the Parliament or the Provincial Assemblies. Such…
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