For the third time in his 35 years of political life, Mr Nawaz Sharif has been removed from the highest political office of this country. Not only is Mr Sharif the only person to have been elected Prime Minister thrice, but has now become the only Prime Minister in the history of Pakistan to have been prematurely removed from office thrice.
Perhaps the most prominent fault-line in the political topography of this country has always been that which separates those who believe in the collective wisdom of this country’s electorate, and those who fear that the demos of this democracy is too ignorant, or even too foolish to be able to effectively hold their representatives accountable. It is feared by those on the latter side of the fault-line that the political elite of this country does not fear accountability from the people because elections here are won and lost based on everything but good governance and merit. Democracy is, at the end of the day, however, a process, not an event. From 1947 onwards, it is the latter of the two mind-sets that has triumphed, time and again, in one form or another. Perhaps the most disastrous outcome of such a triumph was when the Eastern wing of this country broke off owing to, inter alia, the inability of the western wing to accept the principle of adult franchise – one of the basic tenets of modern democracy.
This lack of confidence in the nation’s collective wisdom has also led to other major and minor explosions along the way. On 28th July, 2017, yet another Prime Minister was ousted from office prematurely. For the third time in his 35 years of political life, Mr Nawaz Sharif has been removed from the highest political office of this country. Not only is Mr Sharif the only person to have been elected Prime Minister thrice, but has now become the only Prime Minister in the history of Pakistan to have been prematurely removed from office thrice. Each time, however, by a different weapon. His first removal was by dissolution of the National Assembly under the late Article 58-2B in 1993 (though his National Assembly was restored by the Supreme Court vide judgment dated 26th May 1993), secondly, by a full-fledged martial law imposed on 12th October, 1999, and lastly, by disqualification under Article 62(1) (f) of the Constitution, and Section 99(1) (f) of the Representation of People Act, 1976 (ROPA) on 28th July, 2017.
The most critical question which emerges from this episode that has continued to capture our shared imagination for the last many months is a simple one: whether the Supreme Court, in rendering its “historic” judgment in the case of Imran Ahmed Khan Niazi Vs. Mian Mohammad Nawaz Sharif, has changed the course of our political and constitutional journey, or set it even more firmly in the path that has been its unfortunate destiny since its very inception.
It is suggested that the rigorous pursuit of corruption charges against the sitting Prime Minister by his political opposition, as well as the Supreme Court and the JIT, has done wonders to strengthen the accountability culture in Pakistan which has allegedly been lost somewhere along the line. It can be said with almost absolute certainty, that if a sitting Prime Minister can be disqualified from office on account of failure to “disclose his un-withdrawn receivables constituting assets”, no future candidate for public office will take the requirements of Section 12(2) of ROPA lightly. This alone, however, does not even begin to describe the real consequences of this entire episode.
The broader question, in light of the constitutional history of Pakistan, is whether the judgment has strengthened the elected representatives, and by extension the electorate, or those who have never been able to submit to the collective wisdom of this nation, those who have always come up with one reason or another to wrap up elected governments before the end of their term.
The waves created by this judgment will travel far not only in our constitutional jurisprudence, but also in our political landscape. To determine whether the judgment is a deviation from the august Supreme Court’s trends of the past, or a reaffirmation of the same ethos, it is important to glance over the justifications that the superior judiciary has relied upon to wrap up sitting governments. As far back as 1958, in the landmark Dosso case, the august Supreme Court relied on a misconceived version of Kelsenian jurisprudence to justify the changing our basic norm through a “successful revolution”. In the Nusrat Bhutto case, yet again, the Supreme Court justified ousting of Bhutto’s government and the imposition of Martial Law by General Zia on grounds of massive electoral rigging and the resultant political chaos which, according to the Supreme Court itself, caused a complete shutdown of all normal economic, social and educational activities. In the decade between the two Martial Laws of General Zia and General Musharraf, the august Supreme Court sat in adjudication over as many as four dissolutions of National Assemblies under the Killer Clause – Article 58-2B, validating two (Khawaja Tariq Rahim case and Benazir Bhutto cases), holding the other two invalid (Haji Saifullah case and Nawaz Sharif case) and restoring only one (Nawaz Sharif case). In this era, the Supreme Court remained highly inconsistent in the tests it applied to validate/invalidate an exercise of Article 58-2B.
On 12th May, 2000, the august Supreme Court, yet again, found itself justifying a military takeover, this time on the grounds that there was no constitutional solution to the problem at hand, and that the Prime Minister’s constitutional and moral authority stood eroded. As recently as 2012, Prime Minister Gilani was convicted of Contempt of Court and served a thirty second prison sentence in Courtroom no. 1 of the same august Supreme Court. Being a convict, Mr Gilani was also disqualified as a Member of National Assembly, and by extension Prime Minister, under Article 63 of the Constitution.
Now, the former Prime Minister Sharif has been declared “not honest” and therefore, disqualified to be a member of the Majlis-e-Shoora in terms of Article 62(1) (f) of the Constitution by a bench of 5 unelected judges of the august Supreme Court. The reason: he failed to disclose an un-withdrawn salary in his nomination papers for Elections 2013. The broader question, in light of the constitutional history of Pakistan, is whether the judgment has strengthened the elected representatives, and by extension the electorate, or those who have never been able to submit to the collective wisdom of this nation, those who have always come up with one reason or another to wrap up elected governments before the end of their term. It’s about time perhaps that the determination of sadaqat and amanat of the representatives of the people of this country be made by the demos itself. Perhaps in interpreting Article 62(1) (f) of the Constitution, the Supreme Court should overturn its earlier decision in the Abdul Ghafoor Lehri case and hold that the disqualification is not permanent, thus enabling the Respondent no. 1 to go to his own electorate so that the demos of NA-120 that elected Mr Sharif in the first place should itself sit in appeal over the Supreme Court’s decision on his sadaqat and amanat.
