When boundaries are broken

On December 12, 2000, the leadership of the American republic was decided for the next four years by five unelected individuals wearing robes.

‘Bush v Gore’ would prove to be an intellectual nadir for the US Supreme Court.

Tainting the legitimacy of George Bush’s presidency, the furore of the American people wasn’t just because of the blatant partisan nature of the ruling, but also the fact that the US Supreme Court had decided who their president should be. Whether you live in a constitutional system or not, this is something your apex court should be staying far away from. This explains why we need to be critical of the Supreme Court of Pakistan’s verdict regarding the Election Act, 2017.

If we analyse the short order released by the court, it seems that we are now in a system where unelected judges determine who can head a political party and who can be the prime minister of our country. For a country that, at the very least, holds itself out as a democracy, this can’t be seen as a move in the right direction – no matter where you stand on Nawaz Sharif’s leadership capabilities.

Let’s assume that we accept that Nawaz Sharif’s disqualification à la the Panama Papers judgment was warranted and in complete accordance with the constitution and the role it sets for the judiciary. This recent decision is a far tougher pill to swallow, with its contraction of the constitutional right given to citizens of this country to form and join political parties. While this right is subject to ‘reasonable restrictions’, in the Supreme Court’s prior rulings these restrictions were only confined to those given in the text of the constitution – ie, those that were necessary for maintaining the sovereignty or integrity of Pakistan. Being ‘sadiq’ and ‘ameen’ was never one of them.

This judgment leaves us, a democracy, in the current situation: an elected parliamentarian can only become PM or the head of a political party if the Supreme Court deems that individual capable enough. With the amorphous nature of the words ‘sadiq’ and ‘ameen’, the criteria are completely subject to the moral compass of a Supreme Court judge. Shouldn’t this concern us?

It is clear that our Supreme Court thinks Nawaz Sharif is not the best choice to be our country’s leader. Many, like myself, would probably agree. However, it is not our right to try to force democracy’s hand by giving person-specific judgments in an attempt to tell the people of Pakistan who should lead them. That is not a judge’s role.

If anything, the plan seems to be backfiring, with Sharif gaining more sympathy through each convoluted pronouncement by our courts. Sharif’s popularity is in contrast to the current chief justice’s increasing crowd of critics. In the minds of the people, the Supreme Court may have gone too far. For an institution that needs public trust to function effectively, this is not good news.

If all that wasn’t enough, the Supreme Court has also made sure to flavour its judgment with retrospectivity by nullifying the Senate tickets issued by Sharif and forcing the ECP to bend over backwards to salvage the situation. The ECP’s solution was to let Sharif’s candidates run as independents. Apart from exiling Pakistan’s largest political party from the Senate elections, just what has been achieved? We now have a Senate election in which our largest political party’s participation has been drastically curtailed. This reflects excessive interference within the internal workings of a political party that requires massive amounts of autonomy from the state to contribute substantially to the democratic system. Political parties in Pakistan must now keep one eye on the current Supreme Court’s moral compass while selecting candidates.

A reasonable question would be: what is wrong with that? Shouldn’t our representatives be ‘sadiq’ and ‘ameen’? Of course. But with the vagueness and moral connotations contained in those two terms, whether someone is or isn’t depends on who you are asking. Today, it is failing to disclose assets; what tomorrow holds we can’t say.

In the debate surrounding all this, much has been said by both sides about the constitution. One constitutional principle that is essential for a country to function properly as a democracy is the separation of powers. The simple purpose of this principle is to demarcate the areas of power for state institutions beyond which they cannot stray – to avoid the concentration of power. In its attempt to become the moral compass of our country, the Supreme Court may have forgotten this concept.

The writer is a lawyer based in Lahore and also teaches at LUMS. He holds an LLM. from New York University where he was a Hauser Global Scholar.

Twitter: @HNiaziii