Somehow adding to the woes of the troubled political leader Nawaz Sharif, a three-member bench of the Supreme Court of Pakistan, headed by the CJP Mian Saqib Nisar, unanimously debarred him from heading his political party (PML-N) on Wednesday. Besides this, the apex court bench has also undone “all steps taken, orders passed, directions given and documents issued” by ‘dishonest’ Nawaz Sharif as a party head of PML-N since his disqualification in July last year. This bench was hearing as many as 17 constitutional petitions challenging the legality and constitutionality of the controversial Elections Act-2017, which paved the way for Nawaz Sharif to head his political party after being disqualified in the Panamagate case. In fact, this verdict is widely being viewed as part of our superior judiciary’s ongoing ‘campaign’ to purge and purify the country’s politics by getting rid of PML-N’s ‘corrupt leadership’. So, in his public speeches, now disgruntled Nawaz Sharif will be asking “why can I not head my party?” in addition to his signature question “why have I been ousted?”

On the basis of remarks passed by the honourable judges of the Supreme Court bench during the hearing of this case, it was just expected that Nawaz Sharif would not be allowed to continue heading his political party. In order to conveniently understand and analyse this verdict, we can subdivide it into three components. The first part of the verdict relates to some general qualifications for individuals to head or otherwise hold an office in a political party. So, through this verdict, now the qualifications for a political party head are just co-extensive with that of a Member of Parliament as provided under Articles 62 and 63 of the Constitution of Pakistan. The repealed Political Parties Order-2002 essentially prescribed similar qualifications for holding an office in a political party. Interestingly, contrary to the remedy sought by the petitioners in this case, the apex court bench has refrained from declaring the Elections Act-2017 null and void by exercising its typical judicial review jurisdiction. Instead, it only chose to interpret Section 203 of Elections Act-2017, which essentially prescribes certain qualifications for members and office-holders in a political party, on the touchstone of the Constitution. So, the apex court has extended the scope of Articles 62 and 63 of the Constitution to the political office-holders through this verdict.

The PML-N hawks are currently criticising the apex court for unnecessarily undoing and undermining the provisions of an Act of Parliament. However, there is no point in criticising this verdict on this single ground. Indeed, the highest constitutional court has the authority to interpret any piece of legislation in the country on the basis of the Constitution. Apparently, Section 203 of the Elections Act-2017 is in conflict with Articles 62 and 63 of the Constitution. Logically, if a person is ineligible to become a member of a house, he is certainly not eligible to grant another person the license to become a member of the same house. We all know that PML-N introduced this tailor-made provision in the Elections Act-2017 only to keep Nawaz Sharif alive and relevant politically in the country. Similarly, apart from the debate of the propriety and reasonableness of Articles 62 and 63, it is a fact that these provisions are currently part and parcel of the Constitution. So, just like the legislators, a political party head will also have to be a ‘Sadiq and Ameen’ in accordance with Articles 62 and 63 until and unless the Parliament reviews and amends these constitutional provisions otherwise.

The second part of the verdict debars Nawaz Sharif from heading his political party, the PML-N. There appear to be a number of contradictions, inconsistencies and shortcomings in this part of the verdict. In Panamagate case, the apex court disqualified Nawaz Sharif for not being ‘Honest and Ameen’ under the generic constitutional provision i.e. Article 62(1) (f) of the Constitution. However, specifically, he was disqualified for not accurately declaring his assets in his election nomination papers in terms of Section 12(2) (f) of the Representation of the People Act (ROPA)-1976. In fact, the provisions of the repealed ROPA only prescribed a punishment of denotifying the name of a Returned Candidate if a legislator misdeclares his assets in the nomination papers. This law by no means perpetually debars an individual from becoming a member of the Parliament. Besides this, the apex court has yet not decided the question of length of the period for which a person will remain disqualified to become a member of the Parliament once he is so declared by the apex court. This matter is still sub judice in the apex court. So, it is apparently unjustified to inflict a harsher punishment on PML-N and Nawaz Sharif without conclusively determine the nature and magnitude of the disqualification of a legislator for not being ‘Honest and Ameen’.

There can be some serious and long-term political repercussions for rendering active and popular political leaders instantly inactive and irrelevant through non-political means. They should only be debarred from becoming members of the Parliament or holding any office in a political party once they are duly convicted by a court of law on some corruption charges. All the corruption references against Nawaz Sharif are still pending in the Accountability Courts. So far, no Accountability Court has convicted him - therefore, it quite absurd to politically punish Nawaz Sharif before convicting him in any corruption case. It is also really unfortunate that there is a discussion whether or not a corrupt or dishonest person can be allowed to contest elections or head a political party in the country. These sorts of corrupt person should certainly be dealt with an iron hand. They must be jailed for their bad deeds. Indeed, no one can run an election campaign or lead a political party from the jail. However, it is also equally deplorable to articulate a political agenda in the name of countering corruption.

The third part of the apex court’s recent verdict is about nullifying the administrative actions taken or decisions made by Nawaz Sharif in the capacity of party head of the PML-N. This decision also looks a bit harsher and rather uncalled for. Though not de jure, Nawaz Sharif has been the de facto head of his political party since he was disqualified by the apex court last year. So, in this capacity, he has made a number of administrative and policy decisions. These decisions certainly not involve the question of misappropriation of public funds or misuse of public authority. He could have made these decisions even if he were not the formal head of PML-N. The apex court’s verdict may give rise to numerous anomalies and confusions in the country. It can also jeopardise the smooth and timely conclusion of the forthcoming Senate elections. In fact, there has been a recognised legal principle regarding acknowledging and validating the decisions made individuals even in their de facto capacity. So, in 2009, the apex court recognised and protected the judicial decisions made by former CJP Abdul Hamid Dogar and other judges of the “Dogar Courts” despite declaring that these judges had never been the de jure judges. Noticeably, this verdict departs from this reasonable legal principle.

After the recent verdict passed against him, Nawaz Sharif would nominate any of his loyalists as the head of PML-N. And he would continue to call the shots by assuming the position of the party’s ‘supreme leader’, ‘founder’, or ‘patron’ etc. Therefore, this verdict is not likely to affect the decision-making process in the ruling party. However, this decision will be instrumental in widening the gulf between the two primary organs of the government, the executive and the judiciary. It will hardly help purge our polluted political system. The rising executive-judiciary conflict will only give rise to further political chaos and uncertainty in the country.

Tailpiece: As I am writing this column, the ECP has declared the PML-N candidates for the upcoming Senate elections as independent candidates after allowing them to contest these elections in their individual capacity. Indeed, this is another unfortunate development. These sorts of developments will only reinforce and support certain conspiracy theories which have long been surfacing in the country about the alleged role of some ‘hidden hands’ to block PML-N’s due representation in the upper house of the Parliament.

There can be some serious and long-term political repercussions for rendering active and popular political leaders instantly inactive and irrelevant through non-political means.