Talk about avoiding the elephant in the room. The Senate elections are scheduled for 3rd March 2018. On 21 February 2018, the Supreme Court of Pakistan’s verdict barring former Prime Minister Nawaz Sharif from being the PML-N head happened to have an unprecedented retrospective effect. It stated that the previous decisions of the former prime minister made as party head since his disqualification on 28 July 2017 onwards are also to be void. Interestingly, in addition to this is also the mention of ‘documents issued’ to be declared to ‘never have been given or issued.’
Did the Supreme Court take notice of what specific documents they are henceforth deeming void? If so, why not mention them outright? Was there any deliberation on what effect such a retrospective clause would have not only on the fundamental rights of others but also on the crucial upcoming Senate elections? Could such a retrospective effect do more harm than good in a nation endlessly on the brink of instability by risking the disenfranchisement of an entire political party, that too the largest most popular one in the country, from being part of the Senate elections?
Since the Election Act 2017 was in effect prior to the Supreme Court verdict and was lawfully passed through the Parliament and signed by the president of the country, all such prior decisions could have been respected since they were entirely legal at the time. Had there been any harmful decision made that the Supreme Court found objectionable? Was there any reason to believe any decisions would have been any different? The answer seems to be a resounding no.
Voiding past decisions and nullifying important documents such as nomination papers affect numerous politicians of an entire political party at no fault of their own. It also disenfranchises millions of voters who voted in large numbers for a particular party. Lest we forget, the PML-N was voted in by a landslide victory in 2013 general elections, as well as subsequent by-elections, and enjoys the mandate of the people. The utmost responsibility of the courts, as the basis of the constitution, is to protect those very fundamental rights of the public.
Voiding Senate nominations of an entire political party has vast negative implications that can hurt the country’s politics, weaken democracy, and marginalise public opinion
And since we all know the Senate elections are the glaring elephant in the room, the question arises: why it was not mentioned explicitly in the verdict that no harmful effects should result to the fundamental rights of others, most importantly the disenfranchisement of an entire political party in those very Senate elections? Even with the retrospective clause intact, the Supreme Court could have included in its direction to the ECP to ensure that the PML-N not suffer as a result and be given fair opportunity to re-submit papers or simply be given swift approval by another leader of the party.
However, the specific language used in the judgement by nullifying documents, along with the timing, notwithstanding what was omitted, seems to be a direct blow to the PML-N.
Nevertheless, to ensure free and fair elections, the Election Commission of Pakistan should have stepped up to the plate and readily accepted new petitions that were given by the PML-N party chairman Raja Zafar-ul-Haq on behalf of the party on 22 February 2018, the morning after the judgement. Nothing was holding them back from doing so.
The ECP is an independent entity. It must make accommodations when needed to ensure that fairness ensues concerning elections. That is their job. Fundamental rights cannot be ignored, nor efforts made to disadvantage any particular party or to spite any particular person, as that would not entail free and fair elections nor impartiality. Democracy ultimately means the people’s voice must be respected. It is undoubtedly clear that decisions as to the PML-N’s Senate candidates would not now, nor in retrospect be changed, irrespective of whose signature happened to be or not be on the nomination papers.
Voiding Senate nominations of an entire political party has vast negative implications that can hurt the country’s politics, weaken democracy, and marginalise public opinion. Stripping PML-N members from running in the Senate elections as members of their respective party and making them independent also leaves them vulnerable to all kinds of forces which may want to blackmail them or pressurise them to switch parties. This must not be allowed to happen.
Changing the party designation of a candidate against his or her own will, and against the will of the voters in retrospect seems grossly unfair. This infringes on the Article 17 of the constitution concerning one’s freedom of association.
PML-N’s popularity is showing no signs of dissipating. NA-154 is further evidence that it has not only retained that popularity but has vastly increased and continues to improve as the voters feel their mandate is being trodden upon. Political opponents losing badly at the polls should not as a last resort meddle their political affairs into the courts, where such matters do not belong.
The ECP should accept the nominations of all PML-N Senate candidates and also continue to have elections on time as planned. To not accept them as PML-N candidates raise alarming suspicions of conspiracies, which seek to weaken the power of the PML-N. And if they remain independent candidates, the ECP must ensure they will be allowed to declare themselves as PML-N candidates once elected.
Pakistan desperately needs constancy. Rousseau, one of the most influential thinkers of the enlightenment stated, “…it is the antiquity of the laws which make them holy and venerable; the people soon scorn those laws which it sees change daily; and that in growing accustomed to neglect old usages on the pretext of making improvements, great evils are often introduced to correct lesser ones.” We must be mindful as a nation to never unintentionally make such a mistake.
The writer is a freelance journalist and former contributor for Al-Jazeera America. She has a Masters degree in Political Science. She can be reached at [email protected] or twitter @meriamsabih
Published in Daily Times, February 27th 2018.