In a saner turn of judicial events, Chief Justice of Lahore High Court, Justice Mansoor Ali Shah remarked on Friday, “The verdict of voters is always supreme in any democratic system.” Hearing multiple petitions challenging the Elections Act 2017, he told the petitioners voters had the right to elect a defaulter or a disqualified person.
Just a week earlier, the Supreme Court of Pakistan had already returned over a dozen petitions of the same nature, challenging Sections 203 and 238 of the recently enacted Election Act 2017 filed by the PPP and other parties and individuals, telling the petitioners to revert to the ‘relevant forum’. Through this cryptic objection, the Supreme Court has taken a step back from its recent advances into the political arena. This appropriate step must be appreciated and lauded as it’s a step that begins to take the apex court back towards its own boundaries, restoring the balance of powers of pillars of the state to an extent. The Supreme Court’s recent forays into the business of the parliament and the executive were unwelcome, and injurious to the functioning of the state.
Given that the Supreme Court had already thrown out these malafide petitions in a rather hilarious manner, there being no other ‘relevant forum’ for these petitions, Justice Shah of the Lahore High Court could have followed suit, but it appears that he decided to volley and settle the matter in a more detailed and decisive manner. His remarks on Friday indicate the direction he might go in. Shah asked the petitioners to study the electoral laws of major democracies of the world and put them before him in the next hearing. A naughty mind like mine would like to think that His Lordship has decided to amuse himself a little and troll the petitioners, whilst doing great service to the country and setting a reasoned precedence for the courts to not interfere with the sovereignty of the people and their parliament.
Let’s examine the remark about a ‘defaulter or a disqualified person’. On the surface it appears to condone corruption and immorality. But that is not what his Lordship has done. Aside from the fact that he has reminded the petitioners that courts go by law and not by ‘morality’, he is delivering a very important message through his remarks: that crime and punishment is the business of the courts of law; and that deciding who will govern is the business of the people. This is an important distinction. Let me demonstrate. Suppose I did not declare an asset to the Election Commission per its rules and won the election. Once discovered for not providing relevant information about myself to public, I am disqualified and the election is held again. At this next election, the public knows I had not been honest or had made a mistake, it is now up to the public, the voters, to decide whether they still want me to lead, and therefore I should not be barred from contesting. This is what is meant by sovereignty of the people; that they decide what is their best interests; that they decide who can deliver best to them, not the courts of law. The business of the courts of law should remain confined to punishing crimes and not vade into the business and sovereignty of the people.
Now a little bit of history on the sections of the Election Act being contested for the sake of context and perspective: in this blighted country of ours that has come under martial rule for almost half its life, the origins of disqualification of politicians lie in Ayub Khan’s Elected Bodies Disqualification Order (EBDO) of 1959. Clearly a malafide Order aimed at consecrating his own power and dispossessing the people of their power, the EBDO aimed to destroy the then existing political order. Earlier in 1958 when he took over, he had abolished political parties altogether. Via the various malignant sections of the EBDO he disqualified over 6000 politicians belonging to the West Pakistan National Awami Party and the East Pakistan Awami League, both opposed to One Unit, leaving the Muslim League relatively untouched.
When Zulfiqar Ali Bhutto gave Pakistan the 1973 Constitution he did away with these praetorian provisions to keep the people of Pakistan and their sovereignty imprisoned and shackled in martial chains. History was then to take the ugliest turn and Pakistan was to be cursed with the rule of General Zia. Though his did not re-enact Ayubs’s EBDO, he made life simpler and introduced Article 58-2b into the constitution, an easier nuclear option to rid the people of their representatives. Thereafter the country like a fragile boat in choppy seas traversed the military traps through the 1990s, one government after another being dismissed courtesy 58-2b.
Finally after the Kargill disaster, Gen Musharraf imposed martial law again in 1999 and brought back the Ayub era EBDO via changes in the election rules with addition of the provision, ‘Provided 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 law for the time being in force.’ In same fell, Musharraf also debarred all non Bachelors degree holders from contesting for a national or provincial assembly seat.
The tragi-comic irony here is that aside from all other arguments, Bachelors’ requirement to be elected was written into the rules by those who themselves are not required to be more educated than Fellows (FA – 12th grade) to lord over us. Let this irony not be lost.
Let’s not ignore history. Let’s not forget context. Let’s have a perspective. What Nawaz Sharif’s government did yet again in 2017, was to restore Bhutto’s act of restoring the people’s sovereignty. And lest we forget, every party endorsed it, till some of the parties which see themselves unable to get votes in 2018, decided to challenge the law in an utterly opportunistic and undemocratic vein.