Given the complex nature and dynamics of inter-institutional and intra-institutional relationship, politics in Pakistan retains both the elements of unpredictability and of surprise as it is unfolding in the wake of the upcoming election.
With each passing day, many ‘ifs’ and ‘buts’ are getting cleared on the one hand, and many more are being created on the other. On 8 January, the seven-member Supreme Court bench led by Chief Justice Qazi Faez Isa in a 6-1 majority verdict quashed the lifetime disqualification for Pakistani lawmakers under Article 62(1)(f) of the Pakistani Constitution based on the amendments made to Art 232 (2) of the Elections Act of 2017 in June 2023, and paved the way for Nawaz Sharif, Jehangir Tareen and other leaders contesting the upcoming general elections scheduled to be held on 8 February 2024. The court affirmed that Article 62(1)(f) was not a self-executory provision as it neither specified the court of law empowered to make the declaration (of being Sadiq and Amin—Honest and Truthful), nor provided for any procedure and period for disqualification.
It is important to note that Article 62 of the Pakistani constitution refers to the qualifications for membership of Majlis-e-Shoora (Parliament) and the sub-section (1)(f), which was added by Gen. Zia ul Haq during his military rule, categorically states that a person is eligible if he is inter alia “sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.” In April 2017, a five-judge Supreme Court bench led by then Chief Justice Asif Saeed Khosa had found Nawaz Sharif guilty of violating Article 62(1)(f) of the constitution by not disclosing his salary, as Chairman of the Board in his son’s company the Capital FZE, in his nomination papers for the 2013 elections.
Not being Sadiq and Ameen (Honest and Righteous) cost him his Prime Ministerial post and led to his downfall and political exile. Later, on 13 April 2018 in Sami Ullah Baloch Vs. Abdul Karim Nousherwani & others case, a five-judge Supreme Court bench, led by Chief Justice Mian Saqib Nisar, had ruled in a consensus judgement that the disqualification of any public servant under Article 62(1)(f) was permanent and such a person could not contest election or become the member of parliament. The verdict, though given in a different case, had put a formal full stop to Nawaz Sharif’s political career. However, in a complete turnaround, banking on the parliament’s amendment of the Elections Act of 2017, the recent seven-member bench’s judgment has re-opened the doors of Pakistani politics to Nawaz Sharif and others.
Those in favour of the verdict on the contentious issue of lifetime disqualification included Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali. The only dissenting voice was that of Justice Yahya Afridi who considered the April 2018 Supreme Court judgement in Sami Ullah Baloch vs Abdul Karim Nousherwani and others case legally valid.
In present circumstances, such dissenting notes may have only marginal value but they do carry the potential of re-interpretation in future under a different set up and in a different environment. Therefore, one must welcome the positive development in this regard without overlooking its potential impact in future. On 8 January 2024, Hamid Mir in his TV talk show ‘Capital Talk’ discussed the possibility of a bigger bench re-interpreting 62(1)(f) and declaring the disqualification for life in future.
There is one overarching factor that looms large on the national horizon of Pakistan—the security establishment, more specifically the Army. Throughout the seven and a half decades of the chequered political history of Pakistan, Army remains the most powerful political force in the country often dictating the outcome of the political processes in the country. It ruled the country directly for about three decades and directed the fate of Pakistani state rest of the time indirectly.
Despite its incessant and inherent dislike for popular politicians, it did not hesitate to play one against the other. The tactic worked well with Benazir Bhutto and Nawaz Sharif who alternated power twice before arriving at a consensus in the form of the Charter of Democracy in 2006. The newfound political and democratic consensus got strengthened after Benazir Bhutto’s killing in a terror attack in December 2007 which many analyst suspected to have been sponsored by none other than Gen. Pervez Musharraf himself.
Be it Benazir Bhutto, Asif Ali Zardari, Nawaz Sharif or Imran Khan, Pakistan Army has so far successfully used one to dislodge the other. In the process, it co-opts few while at the same time coerces others. In this co-option and coercion business, it was not only able to enlist the support of religious right, having street power to cripple any government and bring that to its knees, most of the time it found an amenable judiciary that provided legal sanctions to all its unconstitutional actions. Occasionally, on can also found exceptions in the form of individuals like Iftikhar Muhammad Chaudhry who took on the powerful Army head on. Some observers and analysts consider Chief Justice Qazi Faez Isa going by letter and spirit of the constitution.
There is no denying the fact that throughout his judicial career Qazi Faez Isa has been an upright judge who did not shy away from questioning and grilling anyone found on the wrong side of the constitutional edifice. His actions such as the formation of benches in the Supreme Court, livestreaming of the proceedings in the court, linking 9 May (2023) violence with non-implementation of Faizabad Dharna case (November 2017), and 8 January 2024 judgment on Lifetime disqualification definitely exudes confidence in the Judiciary and strengthens the perception of him being the upholder of the Constitution. However, one should not conveniently ignore the changed political landscape and Pakistan Army’s position in the ongoing game of thrones between Pakistan Tehreek-e-Insaf (PTI) and Pakistan Muslim League-Noon (PML-N). It is also both natural and unfortunate that Justice Isa’s verdict would be subjected to biased scrutiny in a polarized political environment and critics of Nawaz Sharif now call it a judgment in line with the political re-engineering allegedly being attempted by the powerful establishment.
Ever since Imran Khan fell out of favour, due to a number of reasons, it is generally believed in Pakistan that the Army has not only ensured his removal from office, it has played an instrumental role to put him in jail, break up his party (PTI) and deny it a level playing field in the upcoming general elections scheduled to be held on 8 February. It has actively facilitated the coming back of Nawaz Sharif from exile and ensured the removal of all hurdles in way of his political life one by one. Surprisingly, the same National Accountability Bureau (NAB) which had charged Nawaz Sharif and actively pursued the cases against him to ensure his disqualification, has now become ineffective when judiciary woke up to grant him relief in one or the other cases. Led now by Lt. Gen. Nazir Ahmed, NAB has found a new task for itself― to go after Imran Khan and other PTI leaders, with the same vehemence with which it once pursued cases against Nawaz Sharif.
At the moment, Pakistan Army wants to stop Imran Khan and PTI coming back to power at all cost. The task is not easy, as Imran Khan remains the most popular political figure at the moment. Nawaz Sharif is the only other political leader who has a political base, past legacy and ability to stand up to Imran Khan. Pakistan Army has definitely entered into a tacit understanding with Nawaz Sharif but it does not trust him completely. It is not easy to predict the long-term future course of Pakistani politics. However, the crown of thorns that is likely to sit on his head post elections, may not be easy for him to wear.
- “Article 62—a law that Nawaz’s party had defended becomes his undoing,” The Express Tribune, July 28, 2018
- Bhatti, Haseeb (2018), “Disqualification under Article 62(1)(f) is for life, SC rules in historic verdict, The Dawn, April 13, 2018