Pakistan’s top judiciary is under severe criticism after judgments regarding the disqualification cases of the top leaders of two main opposition parties — Pakistan Muslim League-Nawaz (PML-N) and Pakistan Tehreek-i-Insaf (PTI).
A three-member bench comprising the chief justice of the Supreme Court of Pakistan and two other judges dismissed the petition for disqualifying the PTI chief Imran Khan and the PTI secretary general, Jahangir Khan Tareen, under Articles 62/63 of the constitution that deals with the parameters of qualification for members of parliament.
In July this year, a separate five-member bench of the apex court disqualified Nawaz Sharif, the then prime minister and also the PML-N chief, in a similar petition moved by the PTI.
Former PM Sharif has severely criticised the judgment in Khan’s case, saying it exposes the “double standards” of the judiciary. A section of political activists and legal experts view this as a “dangerous trend”. They fear these ‘political’ articles in the constitution are becoming a tool of victimisation, and the judiciary exercising these political articles paves the way for their further misuse.
Importantly, the Supreme Court (SC) had earlier refused to entertain this constitutional petition of Khan against Sharif, terming it as “frivolous”. Later, it took up the matter under Article 184/3 of the constitution that enables the SC to hear public interest cases, a decision strongly opposed by a section of the legal fraternity and even the Attorney General of Pakistan. A three-member bench of the SC which took up Khan’s case declared in its judgment that the petition against Khan was based on mala fide intentions and politically motivated in order to retaliate against the PTI’s filing case against Sharif.
“There are certain provisions of the constitution that have yet to be interpreted in a manner that they conform and comply with the spirit of the constitution as well,” says legal and human rights expert Hina Jilani. She feels the articles under which these political leaders are disqualified are political in nature, are amenable to political abuse and will reflect badly on the judiciary if it uses them.
“Sometimes, the institutions think they have the capacity to correct all flaws in the country whether they are social, political or even economic. This is not true. And any attempts in this respect will be counterproductive and can discredit the reputation of a particular institution,” says Jilani. “I would like the judiciary to be strengthened as an institution. Apart from competence, restraint from overstepping its domain is extremely important. I mention competence because, sometimes, in political cases, bad judgments are a result of incompetence rather than lack of independence.”
In Jilani’s opinion, the judiciary has the power to say that a certain kind of case is a political matter and it should be addressed on a political forum. “It [not saying this] has become an acceptable practice, with the result that the judiciary has been pulled into every political question.”
She maintains there are contradictions in these judgments but “we cannot say it is because of a lack of independence or influence but contradictions do exist”.
Last week, the Chief Justice of Pakistan Mian Saqib Nisar lashed out at critics of these judgments, saying “the perception that the judiciary has become a part of a bigger plan or design needs to end”. While stating the judges were independent and took their own decisions, he admitted the judiciary has to step in “when the legislature is not playing an effective role to handle such issues”.
In the past few years, there have been a number of cases in the SC invoking Articles 62/63 as a tool against political opponents.
The Articles 62 and 63 of the 1973 constitution were amended to their present shape in 1985, during the time of a military dictator Ziaul Haq who used Islam as a tool to extend his rule. The words Sadiq (truthful) and Ameen (honest/righteous) were added with new clauses in the article including, phrases like “good character”, “adequate knowledge of Islamic teachings”, “sagacious”, and “moral baseness”.
According to a paper ‘Distilling Eligibility and Virtue: Articles 62 and 63 of the Pakistani Constitution’ by Saad Rasool: “Historically, the provisions relating to qualifications and disqualifications of Parliamentarians in the previous two constitutions of Pakistan (1956 and 1962) were objective in character, brief in content, and ascertainable in nature, dealing primarily with factors like age, solvency, citizenship and mental capacity of the individual concerned… The same brief, ascertainable and definitive model was reproduced in the original text of the 1973 constitution…”
Earlier, the superior judiciary had interpreted these articles in the constitution differently in different cases. In these judgments, the superior courts could not define an extended definition or meaning of these terms within the articles to knock down political rivals.
“The articles 62 and 63 have vague definitions. You can use these words in different dimensions and directions. This is what the courts till now have been doing in different cases for the past many years — deciding on these words on a case-to-case basis,” says senior lawyer and former senator S.M. Zafar. “But in the future, the courts will have to define these words in a proper way.”
Zafar believes seeking these ‘political’ articles is becoming a norm in Pakistani politics. “If the matter is taken to the parliament, there will be no consensus because of different political and ideological positions.” He urges the superior courts and parliament to understand the need of the hour “to particularly define these general words in these constitutional provisions to stop this growing fashion of kicking out political opponents. Ideally, the 18th Amendment should have taken up such matters in detail”.
“Everybody must understand that democracy only functions when institutions remain within their domain,” says Jilani. “I think the initial step of making such cases a judicial pronouncement was wrong. This is something that parliament should have taken up and resolved. The parliament should understand its responsibility too. It should show maturity as a political institution that has the capacity to resolve political issues outside the judicial domain.”