Mr Justice Saqib Nisar has set aside a judgement of Justice Ayesha of LHC pending a detailed hearing of the case. This LHC judgement had declared that forms approved by an act of parliament, to be submitted to ECP along with nomination forms/applications, for elections to the legislature, were a violation of the Constitution i.e that under the relevant Constitutional provisions the parliament was not empowered to make the new forms which superseded the the old ones.
As a lay person addressing others, as uninitiated in law as I am, let me spell out how I understood this case.
The Constitution, under its relevant provisions, has the intent of ensuring that people elected to our legislatures are ” Sadiq” and ” Amin”. To sift these from a whole slew of crooks, the ECP designed “disclosure” forms which were to be submitted by prospective candidates to ECP along with their nomination papers. These forms were designed to act as a sieve which was to help the ECP to decide whether candidates met the moral standards envisaged by the Constitution, as befitting a member of our parliaments. In these forms the candidates had to declare their assets, criminal records, loans owed or written off, status of citizenship, tax records, educational qualifications etc etc.
In 2017 the Parliamentary Committee for Electoral Reforms did away with 19 crucial disclosures in the forms then extant and which were used in the elections of 2013. And new forms were substituted for these and passed into law by an Act of Parliament.
Common Pakistanis who knew of the enactment of this new law never had any doubt, that this law was enacted to ease the passage of every thief, plunderer, and brigand to parliament, and thus elevate him to the august rank of a lawmaker! What none of us could understand is, that in a season full of blossoming suo motos, how come this patently malafide stab at the very heart of “democracy” escaped the notice of our superior judiciary.
And what escaped the notice of us poor devils, the voters, was that EVERY political party, including PTI, voted for this enactment! So much for hope of change for the better!
But two among the ranks of common Citizens were not content to sit back and let the clear mala fides of this legal legerdemain go unchallenged. They resorted to a plea against this in LHC, which resulted in the celebrated judgement of Justice Ayesha Malik .
These Citizens argued or implied that:
-Article 218 to 226 of the Constitution governs the conduct of elections, and under this Article the sole responsibility to organize and conduct honest just and fair elections was that of the ECP.
-The content of the nomination forms is one of the tools which helps the ECP to determine if a candidate meets certain legal and ethical requirements under the spirit of Articles 62 and 63 of the Constitution. Such scrutiny of candidates goes a long way towards determining if the elections are to be honest and fair TO THE ELECTORATE.
-Parliament has powers to make laws for the purposes of elections under Article 222 of the Constitution, but the same Article does not allow Parliament to take away or abridge powers of the ECP
-Historically it is the ECP which drafts nomination forms, but this is the first time this has been done by Parliament, and by doing so it has encroached on the turf reserved by the Constitution for the ECP.
-In short, the Citizens have argued that by drafting new nomination forms Parliament has crossed into a domain which the Constitution lays down as the preserve of the ECP. And no Act of Parliament can override a Constitutional provision. For this to be done, a Constitutional amendment would be necessary.
The ECP has fully supported the position of the Citizens in LHC and stated that forms drafted by Parliament, which it was not competent to do, have omitted mandatory declarations under Articles 62 and 63 of the Constitution. It has further stated that when the Parliamentary Committee on Election Reforms was drafting new nomination forms, ECP informed them that this was beyond their competence. ECP also asked the Committee for a hearing on the subject vide their letter dated 18-5-2017, but their request was denied i.e the Committee rode roughshod over the request of the ECP!
The position of the Federation in LHC was that the new forms were not drafted under malafide intent; that drafting of the same was a “consultative” process over three years among all political parties; that the new forms met the requirements of declaration of assets and liabilities “under the provisions of the Act” and were the result of consensus among “every one”.
Justice Ayesh rendered judgement on two fundamental issues i.e:
– who is competent under the Constitution to draft nomination forms and whether the new forms violate the Constitution.
-whether new forms fail to provide mandatory information and declarations to the fullest extent under the law or do they do so to a reduced level.
On both counts the judgement substantially upheld the position of the petitioners against the Federation i.e that under the Constitution it was the ECP which was competent to draft nomination forms; and that forms as drafted by the Parliament and enacted into law did not provide the full extent of mandatory information and declarations as required under the law.
As soon as the judgement was announced, Mr Ayaz Sadiq came out against it, both guns blazing. He suggested that the timing of the judgement was malafide, and was intended to delay the elections. For people like him, ever intent on making fools of people like us, let me quote here a sentence from the judgement: ” “THE INSTANT PETITION HAS BEEN PENDING SINCE 2017 AND IN FACT, IT TOOK MORE THAN SIX MONTHS FOR THE FEDERATION TO FILE ITS REPLY ” i.e the delay in the judgement was due to the fact that instead filing its reply, the Federation kept sitting on its behind for six months!
Rubbish was expected from Ayaz Sadiq. Too long had he consorted with the masters of the unalloyed lie, to have come out smelling like roses!
But what really hurt was Justice Saqib Nisar’s unshakable commitment to election deadlines. For a man who has come to be revered so, I felt that his commitment to the fairness of elections unsullied by dirt which has inhabited our past parliaments, would have been more in order, and more aligned with hopes he has helped engender among us.
No Mr Justice Saqib Nisar, we don’t need elections on 25 Jul. We need elections a few months later, but elections with fewer thieves to contaminate the results of such elections. If you let elections proceed with the present nomination forms, merely so that they can be held on time, you are leaving a way open to the moral dregs of society to have another crack at the state and its wretched people.
Let me tell you what a difference the forms make. With the old forms Dr Fahmida Mirza, who had Rs 84 crores of bank loans written off, will probably not gather the courage to contest elections. The new forms are a virtual invitation to her to do so.
And would it not be fun to imagine Zardari struggling to fill in the “assets” column in the old forms, knowing that from these forms to NAB there will probably be a straight line!
It is said of Rocky Marciano that having won his 49nth fight, he wanted to make it an even fifty and then retire. But a boxing journalist who had watched him over the years came up to him and said: ” hang up your gloves champ, I saw your knees buckle. And remember a fighter is only as good as the memory of his last fight.”
Justice Saqib Nisar will probably be remembered for many good things, but if he sets aside the LHC judgement in the case of the nomination forms, it is this judgement he shall be known by. And that will be a very sad end.