A war to the knife

Nawaz Sharif’s formal return at the helm of the PML-N was always on the cards. Given that a simple majority in parliament was needed to do away with the provision that barred a disqualified parliamentarian from leading a political party, the former prime minister was only a whisker away from reassuming the top slot in the ruling party. After the enactment of the Elections Act 2017, the PML-N’s general council was required to rubberstamp his election to the office of the party president, which was duly done. 

With the notable exception of the UK, most countries make a distinction between ordinary law and constitutional law. The former can be amended or repealed by a simple majority while the latter can only be enacted by a special majority. The essential idea is to make amendments to the basic law of the land more difficult to implement than any changes to ordinary statutes. In some federal states, like the US, a constitutional amendment bill not only requires the approval of both houses of the central legislature but also the subsequent ratification of state legislative chambers. In the case of Pakistan, a constitutional amendment needs to be passed by a two-thirds majority in each house of parliament.

At times, the distinction between ordinary law and constitutional law assumes enormous significance. Nawaz Sharif was disqualified under Article 62(1)(f) of the constitution. This means that his disqualification can be undone only by amending the constitution. Since the PML-N, along with its allies, does not command a two-thirds majority in the Senate, Sharif remains ineligible to be elected to parliament. By implication, he can’t make it to the office of the prime minister.

The constitution itself does not address the question of whether a disqualified legislator can lead a political party. The Political Parties Order (PPO) 2002 dealt with this question until recently. Section 5 of the PPO stated that: “…a person shall not be appointed 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-Shoora (parliament) under Article 63 of the constitution of the Islamic Republic of Pakistan or under any other law for the time being in force”. 

The Elections Act, 2017 has, inter alia, scrapped the PPO 2002. Section 203 of the Elections Act stipulates that all citizens – excluding those who are in government service – can be elected to any office in a political party. The PPO was introduced by the Musharraf regime with the ostensible purpose of preventing Nawaz Sharif, the general’s arch adversary, from leading the party that bears his name.

Musharraf had also, through a constitutional amendment, imposed strictures on becoming prime minister thrice. Again, he had Nawaz Sharif and Benazir Bhutto in mind – each of whom had held the high office twice. The 18th Constitutional Amendment removed that restriction and thus paved the way for Sharif to be elected prime minister for a third time. In Pakistan, rules are often stretched in the interest or to the detriment of a particular person. Therefore, the opposition’s criticism that the repeal of the PPO 2002 has been occasioned in the interest of only one person is valid – albeit only partly. The inception of the PPO, like its repeal, was person-specific. Faced with a similar situation, both the PPP and the PTI – the two major parties in the opposition – would also have come up trumps to save their supreme leaders. The cult of the personality has always been a hallmark of Pakistan’s immature political culture.   

The Election Act 2017 also stipulates that no parliamentarian can be disqualified for more than five years. Again, without the slightest of doubts, this provision has been inserted for the benefit of Nawaz Sharif – though, in due course, it may place another politician of comparable stature in good stead.

No time limit is specified for disqualification under Article 62(1)(f), which means that either parliament or the judiciary can prescribe a definite time limit. The widespread view has been that disqualifications under Article 62(1)(f) are perpetual. Going by that interpretation, Sharif was disqualified for life. The new law, however, has reduced his disqualification to a maximum of five years. In this way, the PML-N has used the power of parliament to partly counteract the disqualification of its supreme leader at the hands of the apex court.

Like any other statute passed by parliament, the Elections Act is subject to judicial review on the touchstone of constitutionality. Already some political parties have challenged – or have expressed the intention to do so – the act before the courts. It remains to be seen whether the petitioners can establish to the satisfactions of the courts that the Elections Act conflicts with one or more provisions of the constitution.

While the fate of the Elections Act will be settled by the judiciary, the passing of the statute is fraught with political implications. The circumstances in which the act has been enacted portends that the much-feared war to the knife among the institutions is on the horizon. The relationship among the institutions has already gone to pot in recent months. The decision to unseat Nawaz Sharif has been seen by a large section of politicians as well as the civil society as an attempt to reduce the legislature and civilian institutions to a rump. Since, as the argument goes, a popularly-elected prime minister was given the shaft by the apex court, the parliament – being the repository of the popular will – must show its teeth to other institutions. The counter-view is that Sharif was sent home following a fair trial and that his criticism of the judiciary will in no way serve democracy.

While, subject to some restrictions, the parliament is competent to enact, repeal or amend any law, legal changes are not a recommended recipe for grappling with political conflicts. At times, they may even exacerbate the political situation. The country’s turbulent political history is a testament to this.

The early years of Pakistan witnessed an intense scramble for power between the executive and the legislature. Matters came to a head with the dismissal of the Constituent Assembly, which also acted as the federal legislature, in 1954 in a dramatic fashion. To clip the wings of an overbearing governor-general, the assembly had passed a bill whereby he was divested of his powers to dismiss the prime minister – the very powers through which he had given the boot to former prime minister Nazimuddin in 1953. However, the governor-general retaliated by sacking the Constituent Assembly. Although the Chief Court (now the high court) of Sindh declared the sacking of the assembly invalid, the Federal Court (now the Supreme Court) reversed the decision on purely technical – flimsy for many – grounds. 

This is commonly known as the Maulvi Tamizuddin – who was the president of the sacked assembly and the petitioner – case. The PML-N has, time and again, compared Nawaz Sharif’s disqualification to the Maulvi Tamizuddin case.

The PML-N’s adversaries as well as analysts have taken a dig at the party for following a belt-and-braces policy. Instead of getting laws amended by a ‘brute’ majority, Sharif should come clean on corruption charges against him. For some others, repealing Section 5 of the PPO 2002 in such an “indecent haste” is likely to raise a stink for the ruling party as well as democracy. At any rate, the cat has been set among the pigeons.

The writer is a freelancecountributor.

Email: hussainhzaidi@gmail.com