Detailed SC judgement: disqualified 'king' cannot be allowed to act as kingmaker

The Supreme Court on Friday declared that a "person who is disqualified to be king can nevertheless be given a free hand to operate as a kingmaker." A three-member bench in its detailed judgment on the petitions against the Election Act 2017, made it crystal clear: "To hold that a person who is disqualified to be king can nevertheless be given a free hand 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."
After the enactment of the Election Act 2017, former Prime Minister Nawaz Sharif again became head of Pakistan Muslim League-Nawaz. However, as result of the short order announced on February 21, the ex-PML-N was again dethroned. But the party has declared him as "Quaid for life".
Seventeen petitions, including those of Sheikh Rashid Ahmed, Pakistan Peoples' Party and Pakistan Tehreek-e-Insaf, filed against the Election Act 2017 had raised objections to allow Nawaz Sharif lead PML-N even after the apex court judgment. "It is a cardinal principle of law and justice what cannot be done directly cannot be done indirectly," read the judgment.
The court noted that a conscious effort was made to protect, shield, cushion and favor 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 Act can't 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 cannot be used to circumvent and bypass constitutional provisions more so where the attempt is so blatant and ex facie designed to favor 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 harmonizes it with the general scheme, theme and jurisprudential architecture of the Constitution.
The court noted that in terms of Section 240(g) of the Election Act, 2017, the Political Parties Order, 2002 was repealed. Such repeal took effect on 2nd October 2017 when the Election 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 party head of 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 Election Act, 2017. Therefore, the appointment of respondent No 4 as president/party head of respondent No 3 on 03.10.2017 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 is a 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.