In what may prove a decisive blow to Nawaz Sharif’s political career, the Supreme Court of Pakistan ruled on Wednesday to bar him from heading his political party for being disqualified from the membership of the Parliament. The judgement left many concerned about the promotion and protection of fundamental rights baffled for being in direct conflict with the spirit of the Constitution.
Fundamental Rights: In the operative part of the five-page judgement, the Court ruled that the provisions of Sections 203 (membership of political parties) and 232 (disqualification on account of offences) were liable to be read with infamous Articles 62, 63 and 63-A of the Constitution. Whereas the two sections of the Election Act 2017 do not conflict with fundamental rights provisions as such, Wednesday’s judgement has read them subject to the constitution’s articles dealing with qualifications for membership of the Parliament.
The problem with this approach is that it prevents those disqualified under Articles 62/63/63-A from exercising their fundamental rights as citizens of the republic, enshrined in and protected by the constitution of Pakistan for ‘detailed reasons to be recorded later’.
In the judgement, the three-member bench – comprising Chief Justice Mian Saqib Nisar, Justice Umar Atta Bandial and Justice Ijazul Ahsan – makes a reference to the Article 17 of the constitution, which clearly provides that ‘every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party.’
The article further adds, “… subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan…” Explaining the requirements of such a law, the article says that such a law should empower the federal government to make a declaration to that effect [that certain political party was working against the interests of country’s sovereignty and integrity]. Within 15 days of making such a declaration, the federal government shall refer the matter to the Supreme Court whose decision on such reference shall be final, according to the article.
This clearly means that disqualification under Article 17 would be of a political party as an entity, not of a citizen from being a member of or holding an office of a political party. In order to get the disbandment of a political party on account of acting in a manner prejudicial to the integrity and sovereignty of Pakistan, a two-stage process must follow as per Article 17, i.e., the federal government must make a declaration; and a reference to the Supreme Court.
Thus, the only restriction is on political parties, not on citizens for being part of any political party. It was seen in the Islamic Republic of Pakistan vs Abdul Wali Khan case (PLD 1976 SC 57) whereby National Awami Party (NAP) was disbanded following a similar process. Within days, the leaders of NAP established a new party with another name.
The fundamental rights are protected under the constitution even if someone is declared felon, a convict or disqualified from holding parliament’s membership. The judgement in question bases it’s ruling on the reasoning that a person heading a political party ‘has a central role in the performance of duties by the Members of the Parliament’, s/he therefore, must fulfill the criteria set by the Article 62 and 63.
If this logic is applied on the judiciary that is mandated to interpret the work of the members of the Parliament, every member of the bench will have to fulfill the same criteria as of a member of Parliament. There would be no end to the application of moral turpitude to the holders of all offices in all the organs of the state.
The critical part: The critical, and in a sense most unnecessary, part of the judgement is in its section 9, whereby the honourable court has declared that ‘all steps taken, orders passed, directions given and documents issued [by Nawaz Sharif] as Party Head after his disqualification on 28.07.2017 are also declared to have never been taken, passed, given or issued in the eyes of the law’.
It is, again, inexplicable as to why the esteemed court deemed it fit to give Mr. Sharif the worst of both the worlds. The court is applying on him the restrictions that apply on public office holders i.e., the member of the Parliament – that is to say, for disqualifying him they are treating him as public office holder subject to restrictions that apply on members of Parliament – but when it comes to his actions/decisions, they are denying him the status of a public office holder and nullifying all his decisions that he took as party head after his disqualification on July 28, 2017. It is inconsistent to the extent that restrictions of public office holder have been applied without giving protections to his decisions that were provided vide earlier judgement.
It is interesting because the main decisions taken by him as party head (considered by the court as public office like the member of Parliament) were nominations for all by elections in past six months as well as for the upcoming Senate election. While the main decisions he took as a public office holder, i.e., Prime Minister (which the court had protected under the doctrine of avoidable consequences) included making key appointments including those of the chiefs of armed forces, navy, air force, the National Accountability Bureau, and other important institutions, let alone the key decisions made for development projects, foreign and national security policies as well as the finance bills of past four years.
Implications on Senate Elections: Declaring the decisions of the head of the biggest political party null and void means that his letters of nomination of party members for Senate candidates might also become null and void, creating a vacuum following which the Election Commission of Pakistan might decide to postpone the elections altogether. The most important point to bear in mind is that the Senate’s permanency is enshrined in the Constitution. There cannot be a time when Senate of Pakistan is suspended. For that reason, the ECP is not empowered to postpone the election.
Even if all the nominations made by the PMLN are held null and void, the elections shall still proceed. The precedent of partial elections is already there when in 2015 the elections on FATA seats were postponed but the rest of elections could not be stopped.
The Way Forward: The appropriate way forward for the ECP would be to carry on with the elections without cancelling the nomination papers of PML-N candidates even if their party nominations are held null and void after the judgement in question. In such a case, the PML-N nominees would be considered independent candidates instead of carrying party’s label. The ECP is empowered to decide the matter accordingly and allot different election symbols to all these candidates.
Another option can be, the PMLN appoints an interim president of the party, who can then submit fresh letters of nomination for all its party candidates post-haste.
In these two situations, Senate elections would not be affected. But in case the former option is not followed by the ECP, it would be clear that some wheels are in motion to create a ripple effect for preventing the Senate elections or inhibiting a certain party from seeking majority in the upper house.
Published in Daily Times, February 22nd 2018.