That the law permitting disqualified persons to hold office in political parties would be struck down was perhaps inevitable. However, by declaring that all actions taken by Mian Nawaz Sharif as PML(N) President were illegal since his disqualification as an MNA, the Supreme Court did something unusual. Though it was not outside its competence, the decision did produce the kind of uncertainty and confusion that is normally avoided by the majority of decisions, which hold that actions are valid if done under any law before it is struck down. At the same time, the confusion over the Senate election shows that for at least a section of the establishment, the decision is not so much about Mian Nawaz Sharif, as about the impending Senate elections. This has been because all the Senate tickets issued by Mian Nawaz, which included those for the Punjab, have been rendered superfluous, and now the candidates will have to contest as independents.

The Senate had already been a focal point. The recent change in Balochistan, where the PML(N)’s Sanaullah Zehri was replaced by the PML(Q)’s Abdul Quddus Bizenjo, was explained by some as being because there was a desire to prevent the PML(N) from taking the Senate seats it derived. There are a few things to be noted about the Senate elections. First of all, the voters would be members of the present provincial assemblies, whose terms would expire (along with that of the National Assembly). The last elections took place in 2015, when half of the Senate was elected, by the same provincial assemblies. Thus these provincial assemblies would get to elect the entire Senate. This is rare enough as it is, but perhaps more important, the outgoing provincial assemblies would be reflected until 2021 in the Senate.

If the Senate elections had taken place as scheduled, and with Mian Nawaz’s tickets as valid, the result would have been to give the PML(N) the majority in the Senate it has lacked so far. That meant that whoever won the coming general election, would have only won control over the executive, and would have to wait at least until the next Senate election to obtain legislative power.

It must be noted that the PML(N) government faced a Senate in 2013 which had been elected in 2009 and 2012, and which had thus reflected the provincial assemblies elected in 2008. These assemblies too had been reflected in the Senate, whose composition only began to change in 2015.

As was to be expected, the PML(N) found its National Assembly majority of little use in legislation, and any law could only be passed if there was a consensus. This was usually the case with legislation that was wanted by the establishment, like the establishment of the military courts to try terrorism-related offences. To find another example of a government saddled with this disadvantage, one would have to go back to the 1988-90 Benazir government, the first PPP government after the Zia martial law.  It was noticed that it could not pass any laws, though it could promulgate ordinances. It was dissolved well before the 1991 Senate elections, which reflected the 1990 election results. At that time, it was almost routine for both federal and provincial governments to avoid legislation by promulgating ordinances, which were temporary statutes with a six-month validity, which would be seamlessly re-promulgated after they expired. However, the judiciary declared that re-promulgation was ultra vires of the Constitution, and while the governments retained the power of legislating quickly, that law had to be passed by the competent legislature in the six-month window of opportunity before expiry. A Senate majority is thus important for any government, so allowing the present provincial assemblies be reflected in the entire Senate would mean that only a PML(N) government would be able to enjoy a majority in both Houses. While a non-PML(N) government would hold office and be able to pass the Budget, it would not be able to pass any legislation without the PML(N)’s approval.

The possibility of a PML(N) majority in the National Assembly was raised by the result of the Lodhran by-election, which was the result of the unseating of PTI Secretary-General Jehangir Tareen. Even with Mian Nawaz disqualified, the PML(N) won. More than the current Assembly, this by-election was about the coming election, as various players positioned themselves. For example, this win by a sitting PML(N) MPA’s father strengthens that MPA’s claim to the ticket, either for himself or his incumbent father.

The strategy for Mian Nawaz’s return involves winning the coming general election, and thus control of the legislature, allowing the passing of laws which would let him make a comeback. That he must not be allowed to return is not just because the establishment wants him out, as because he must become the proverbial ‘horrible example’. Without a Senate majority, he would not be able to legislate.

In the election on Monday, the PML(N) MPAs have no one but independents to vote for. As the ballot is secret, this does not attract the defection clause, but what of the Senators duly elected. One option would be to leave them as independents. However, that would be asking for trouble. Not only would it mean they have no formal say in electing PML(N) Senate officebearers, but it means they will have a separate group with powers of nominating to various committees.

The more logical option would be to include them in the PML(N) parliamentary party after they join the main party. In other words, the procedure for independent MNAs or MPAs. However, it should be remembered that such inclusion is no guarantee that anti-floorcrossing legislation will apply. For a start, Senators have no role in any confidence measures. Also, so far, floorcrossers or rebels against the party leadership have not been unseated. The latest example is PTI MNA Gulalai Khan, who remains in the House, though as a member for a women’s reserved seat, she depends on the PTI not just for a ticket, but for her very membership.

After Mian Nawaz, the PTI might provide the next example in Tareen. He did send in his resignation as Secretary-General after being disqualified, but the PTI retained him pending the decision of his review petition. However, at that point it had been a moral position, not a legal one. Now the law seems to have caught up.

Another point to be kept in mind is that PML(N) legislators are pragmatists rather than loyalists. However, this is not the best of assumptions to make. The late Punjab Governor Salman Taseer was tasked with winning over sufficient PML(N) MPAs in 2009, when Emergency was imposed in the province. However, he failed, and the Shehbaz government resumed office when the Emergency was lifted. At best, the newly elected independent Senators might be inveigled into voting for a Chairman other than the one chosen by the PML(N). That election will determine whether the next government controls the Upper House.

The writer is a veteran journalist and founding member as well as executive editor of The Nation.

If the Senate elections had taken place as scheduled, and with Mian Nawaz’s tickets as valid, the result would have been to give the PML(N) the majority
in the Senate it has lacked so far.