The deal strikes again

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

A three-member bench of the Lahore High Court declared Nawaz Sharif disqualified from being elected as a member of parliament on Monday. On Wednesday, the Supreme Court stayed elections in the said constituency till the disposal of appeal against the High Court ruling. Few in the country believe that the High Court, as an arbiter dispensing justice, has ruled objectively on the constitutional rights of Mr Sharif and even fewer believe that the outcome of proceedings before the Supreme Court will be strictly guided by the letter and spirit of the Constitution. The foremost damage that General Musharraf's mischief with the judiciary and PCO judges playing ball with him have done to this country is this: we have been robbed of our faith in the judicial branch as an impartial guardian of the law and citizens' rights.

The real tragedy of the High Court decision is not that it has declared the leader of a popular mainstream political party ineligible to sit in parliament, but the shoddy manner in which it has been done. To the extent that the High Court found merit in objections to Mr Sharif's eligibility as a candidate for parliament, it was obligated to address the underlying constitutional questions with logical and convincing legal explanations. Yet the High Court bothered with no discussion of constitutional rights and prohibitions and how they lead to Mr Sharif's disqualification under Articles 62 and 63 of the Constitution. The ruling alludes to two reasons for disqualification: (a) because an accountability court convicted Nawaz Sharif in 2000 and sentenced him to 14-year rigorous imprisonment and imposed a 21-year disqualification from seeking public office; and (b) because Mr. Sharif has "scandalized, abused, disobeyed and ridiculed the judiciary of Pakistan".

Let us attempt to decipher what the court is saying. Article 63(h) of the Constitution states that someone convicted for an offence, "which in the opinion of the Chief Election Commission involves moral turpitude", would be disqualified from membership of parliament "unless a period of five years has elapsed since his release." The court probably did not rely on this article for it requires a determination by the Chief Election Commissioner, which he has not rendered in this case. Instead the ruling seems to be based on Article 63(l), pursuant to which a person is disqualified if he has been found guilty of corrupt or illegal practice, "unless a period of five years has passed from the date on which the order takes effect." So we are still confronted with the issue of timing, as Mr Sharif was convicted and pardoned by the president in 2000 and even if the disabilities of Articles 63(h) or (l) were attracted at one point, they wouldn't apply any more as it has been over five years since the pardon was granted.

Article 45 of the Constitution states that, "the president shall have the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority." And yet in interpreting this provision, and without quoting any precedent, the High Court just decided that the presidential pardon under Article 45 does not "exonerate" Mr Sharif "from the sentence and conviction recorded by the court of competent jurisdiction, particularly when [Mr Sharif] failed to produce the presidential order." Does the constitutional pardon not rescue Mr Sharif from Article 63's disabilities because it cannot take erase the guilt already established by the conviction? Even if that were so, the disability would only stay in place for 5 years. So then is the pardon not helpful because the conviction never took effect and thus the five-year cooling-off period never started running? Or is the presidential pardon not effective because while being a part of official record it was not produced in the court by Mr Sharif personally?

So if the presidential pardon doesn't exonerate (a synonym of pardon!) Mr. Sharif from the sentence and conviction, what is he doing running amok making speeches around the country? After all if his 21 years of disability from seeking public office is still effective despite the pardon, should he not presently be locked up because he was also condemned to rigorous imprisonment for 14 years? Probably realizing the precariousness of the reasoning in the judgment, the bench decided to throw in the additional charge of bringing the judiciary into ridicule, which attracts disqualification under Article 63(g) of the Constitution. Once again, if it is true that Mr Sharif's words and actions have "scandalized, abused and ridiculed" the judiciary of Pakistan for purposes of Article 63 of the Constitution, was the Court not under the obligation to try Mr Sharif for contempt of court? Can a person be disqualified as a candidate for parliament and thus punished for committing a crime without ever being formally charged and convicted for the same?

The Lahore High Court ruling will need to be struck down eventually, if not done immediately by the Supreme Court, for it makes a mockery of our judicial process and the substantive and procedural protections afforded to citizens by the Constitution. What is as damning as the reasoning of the ruling is it's timing, which renders our "custodians of justice" vulnerable to the criticism that executive diaktat weigh more heavily on judicial outcomes than considerations of the law. Is it a coincidence that while the graduation requirement for parliament's membership and all charges against Asif Zadari and other beneficiaries of NRO have been dropped in a flash, the legal woes of the Sharif brothers just don't seem to go away? The obvious explanation for the disparate treatment being meted to Mr Zardari and Mr Sharif by our justice system would be that the former has embraced and protected the reigning PCO judges while the latter promises to be their nemesis.

But let us delve deeper. The deal struck between Benazir Bhutto and the general, sponsored by their foreign patrons and executed through the NRO rested on the assumption that the Sharifs will remain in exile till 2010. In accordance with this understanding, the general banished the older Sharif to Saudi Arabia on September 10, 2007, in blatant disregard of his constitutional rights and an unequivocal Supreme Court ruling requiring the government to ensure his unhindered return to Pakistan. His exile finally ended on Nov. 25, 2007, once political events in Pakistan sprang out of the general's control in the aftermath of his Nov. 3 debacle. Even in the Feb. 18 elections, the real shocker was the number of seats clinched by PML-N. In a nutshell, it is safe to argue that the transition to democracy planned by the general, his domestic allies and foreign patrons envisaged no role for Nawaz Sharif.

On the other hand, despite the much-celebrated alliance between the PPP and PML-N (which I previously argued had the potential of becoming a dream team), the two partners still have their horns locked on the issue of restoration that formed the very basis of their decision to join hands and form government. Meanwhile, the PPP-led government continues to retain the general's cohorts (AG Malik Qayyum, National Security Adviser Mahmood Ali Durrani and Interior Secretary Kamal Shah among others) in key executive positions, and has now inducted Salmaan Taseer (the general's caretaker minister for industries in 2007/08) as Governor Punjab. Meanwhile, security czar Rehman Malik orchestrated a devious plan to delay by-elections initially in May, which would primarily have kept the Sharif's out of parliament. The plan backfired and the PPP needed to indulge in immediate firefighting, thanks in large part to ANP's disclosure of Mr Malik's efforts to secure a delay in the by-polls. And now we find PCO courts blocking Nawaz Sharif's bid to enter the parliament.

These seemingly disjointed facts suggest that notwithstanding the rhetoric of Charter of Democracy and the Murree Declaration, whether it is the approach toward the judiciary and the presidency, the relationship with the United States or making key executive appointments, Asif Zardari is much more aligned with the general as opposed to the PML-N. It has been argued that the PPP-PML-N coalition could have worked wonders in strengthening democracy, rule of law and issue-based politics in Pakistan and forging a common front to fight the security and economy-related challenges confronting the country. But such prognosis was based on the assumption that BB's assassination had unravelled the deal between PPP and the general.

Despite PPP's ceremonial Musharraf-bashing, its actions reveal that the party leadership is still in bed with the general. The logic of the PPP-PML-N coalition being beneficial for democracy and rule of law is sound only so far as it gives effect to the Charter of Democracy and the Murree Declaration. But with Asif Zardari running with the hare and hunting with the hounds, the coalition is merely providing him with a useful camouflage. PML-N needs to reassess the virtues of staying in government.



Email: sattar@post.harvard.edu