Friday January 28, 2022

Political questions and the court

March 28, 2018

History will judge whether the rowdy scenes and fisticuffs on March 12, 2018 in the once sedate and dignified gallery of the Senate of Pakistan was a tragedy or a farce.

As Pakistan moves forward to the third general election to the National Assembly in a row, hopefully the past – blemished by coups legitimised by necessity – is a different country. Though hurling shoes at former prime ministers or ink at a present foreign minister are dangerous portents, it is time we demonstrated to the world that Pakistan has come of Age with an orderly transfer of powers through the ballot.

It was Charles Louis de Secondat, Baron de Montesquieu (1689-1755) who in his ‘Spirit of Laws’, published in 1748, presented the doctrine of the separation of powers – a legislature which makes laws, a judiciary which interprets the law and an executive which enforces the laws. Separation of powers was necessary, Montesquieu believed, because it provided the best bulwark against tyranny and the best guarantee of the liberty of subjects. This applies with equal force to Pakistan today.

It is on the anvil of the theory of separation of powers, a theory adopted by the Supreme Court of Pakistan, which has held the field ever since 1973 (State vs Ziaur Rahman PLD 1973), that we endeavour to analyse the recent judgement of the apex court in Zulfikar Ahmed Bhutta’s Case delivered on February 21 2018 by a full bench of the Supreme Court. It will remain a mystery why, and under what juristic principle, the then attorney general conceded in 2017, in Imran Khan’s case, application of Article 184 of the constitution. The said article confers extraordinary jurisdiction upon the Supreme Court. What fundamental right do Imran Khan and Sheikh Rashid possess to seek a declaration under Article 184 that Mian Muhammad Nawaz Sharif is disqualified to be the prime minister of Pakistan or hold the office of president of the PML-N to which he was duly and unanimously elected in an open convention? It is indisputable that the leadership of a political party is essentially a political question.

Here one may digress, to quote a paragraph from the time-honoured SC judgment on the limits of judicial activism when it comes to political questions in the celebrated case of Malik Feroz Khan Noon vs the State reported in Old 1958 (Pak):

“What has caused me most concern,” observed Chief Justice Muhammad Munir, “is that the learned judge should have assumed the role of a moral and political reformer. And as regards his reference to the interests of the country and the disaster that may fall to eighty millions people of Pakistan if a man like the appellant, Sir Malik Feroze Khan Noon, should be allowed to continue as (prime minister) in judicially determining the qualifications of a prime minister. This is pure politics and when politics enters the portals of the palace of justice, democracy, its cherished inmate, walks the back door”.

At this point it is apt to quote part of the Feb 21, 2018 judgment of the Supreme Court, in Zulfikar Ahmed Bhutta and others vs Federation of Pakistan, delivered regarding exercise of powers conferred by Article 184: “Respondent No 4 Mian Muhammad Nawaz Sharif) at all material times was the president of Pakistan Muslim League (N) which is a political party registered with the Election Commission of Pakistan. In view of the first proviso to Article 5 of the Political Parties Order the Respondent No 4 could not remain an office bearer or president of Pakistan by reason of his disqualification under Articles 62 and 63 of the Constitution. Accordingly he stood removed from the said office as a consequence of the afore noted Judgement (Imran Ahmed Khan Niazi vs Mian Muhammad Nawaz Sharif PLD 2017 SC 265) ...and by operation of the Relevant law.”

The relevant law to which their Lordships refer is the first proviso to subsection (1) of Section 5 of the Order of 2002: “Provided that a person shall not [be] reappointed 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-Shura (parliament) under Article 63 of the constitution of the Islamic Republic of Pakistan or under any other law for the time being in force”.

This proviso was repealed and the legislative intent was that it ceased to have legal effect when it was deleted viz the Election Act of 2017 which came into force on October 2, 2017. This deletion enabled Nawaz Sharif to be elected as president of the PML-N. The apex court in its judgment of February 21, 2018 decided: “...the omission of proviso 5 in the text of Section 5 of the Act of 2017 would not have the effect of changing the meaning, scope and interpretation of the latter provision”.

With due respect, this finding did not consider that the first proviso to Section 5 was person specific and was designed by the usurper General Pervez Musharraf to prevent the comeback of both Benazir Bhutto and Nawaz Sharif, the latter whom the usurper had overthrown, handcuffed and imprisoned.

At the time the first proviso was added, Pakistan had a two-party system at the federal level, with the pendulum swinging between the PPP and the PML-N in the decade between 1988 and 1999.

In any event, the political vote bank continues to be vested in Nawaz Sharif. Since the judgment was delivered, Nawaz Sharif and his charismatic and eloquent daughter Maryam Sharif have demonstrated their vote bank, and the popularity of the duo has increased since Nawaz ceased to be the nominal Quaid of the PML-N.

This is not to argue that the Supreme Court should not be active in the enforcement of the rights of women, children and men. The people of Karachi, Pakistan’s biggest metropolis, are suffering from crass negligence since the time of Ziaul Haq’s regime, and appreciate the apex court concern. If Lahore is the heart of Pakistan, Karachi is its liver. Here too the cause of the problem of the metropolis has yet to be properly considered.

The apex court has yet to rule on the government of Karachi. Karachi is like New York City in New York State. While New York City is under the supervision and management of the mayor of New York City, the domain of the mayor of Karachi is restricted to one-third of the district of Karachi which is by and large, a federal city with six cantonment boards and two port trusts under the control of the federal government. Way back in 1950, the first Constituent Assembly of Pakistan enacted the Karachi Improvement Trust Act which brought all the actors under the supervision and control of the KIT.

The Karachi Improvement Trust was vested with wide powers including master planning, transport, water supply and sanitation. The question of law will one day be raised. Without a city government, the capital of Sindh will continue its decline to the edge of the precipice. The people of Karachi look up to the Supreme Court of Pakistan to help in this matter. Peace and prosperity in Karachi, the capital of Sindh since 1843, is not a political question.

The writer is the former governor of Sindh and senior advocate Supreme Court of Pakistan.