The Pakistan Muslim League (Nawaz) party’s move to pave the way for former prime minister Nawaz Sharif to return to the country and lead the campaign in the forthcoming parliamentary election was dealt a severe blow by the Supreme Court of Pakistan on Friday, 11 August.
In 2017, the Supreme Court had removed the then prime minister Nawaz Sharif from office on corruption charges. A year later, it barred him from contesting and holding any public office for life.
But in May 2023, the PMLN-led coalition government of Shahbaz Sharif passed an act that would allow Nawaz Sharif to seek a review of the earlier order barring him from contesting elections in future. Attempts were on to hasten his return by next month and project him as the PMLN’s prime ministerial candidate.
However, the apex court struck down the Supreme Court (Review of Judgements and Orders) Act, 2023, that expands the scope of a review petition, terming it unconstitutional.
The aim of the new act
The act is aimed at expanding the jurisdiction of the court by allowing a right to appeal under Article 184 (3) of the Pakistan constitution when fundamental and civil rights are threatened.
It’s “aimed at facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders,’’ the government had said. It argued that it was not attempting to override the court’s rights, but only expanding its scope.
But a three-member bench headed by Chief Justice Umar Ata Bandial ruled that parliament had gone beyond its legislative competence in passing the law. It said that the law was “repugnant to and ultra vires of the constitution,” and added that, “It is accordingly struck down as null and void and of no legal effect.”
The government had also amended the Elections Act, 2017, early this year in parliament, limiting the disqualification of lawmakers to five years, with retrospective effect.
Government’s reaction
Prime Minister Shahbaz Sharif, Nawaz Sharif’s younger brother, has taken the initiative of getting the former prime minister back in the country. He told GEO TV’s Hamid Mir in an interview that Nawaz Sharif could return from London — where he is in self-exile since 2019 — by September and lead the PMLN campaign.
He described the Supreme Court’s decision as “contempt of parliament.”
The Prime Minister pointed out that under the constitution, parliament was empowered to make laws. He said this was the first time in history that the legislature was being prevented from making laws. “This has not happened anywhere in the world,” Shahbaz Sharif added.
He said that after the amendment in the Election Act, Nawaz Sharif was eligible to return to the country and lead the campaign as he had already served the mandatory five years of his disqualification.
His other PMLN colleagues and senior cabinet ministers also shared similar views and expressed outrage at the Supreme Court’s decision to override parliament. They pointed out that the legislature's job was to make laws, and the apex court’s role was to apply them.
Former interior minister Rana Sanaullah said the judgement was “beyond the Supreme Court’s constitutional jurisdiction” and clearly, “an encroachment on the parliament’s domain.”
The timing
Many observers have expressed concern at the timing of the Supreme Court’s verdict, which came a day after Shahbaz Sharif sought the dissolution of the current parliament.
According to Ahmed Bilal Mehboob, a legal expert and president of the think-tank Pakistan Institute of Legislative Development and Transparency, if the court wanted the government to take corrective measures it could have delivered the judgement some days before the dissolution of the house.
Mehboob said that if enough time was given then perhaps the government could have brought an amendment to the act to accommodate the apex court’s objections, and re-issued the legislation.
But the judgment was passed when there was no scope for parliament to discuss the matter any further, he explained.
The term
The term of the current chief justice ends on September 16. And the government has been given a month to appeal the court’s decision. This means that even if it seeks a review of the decision, it will be seen by Justice Bandial, and there’s little chance of him overturning his own verdict.
This, Mehboob felt, was done deliberately by the chief justice and the two other members of the bench.
Also, he felt that if the Supreme Court wanted to review the act, it should have done so with a bigger or full nine-member bench.
Incoming Chief Justice Qazi Faez Isa, who’s known for his independence, is scheduled to take over on September 17. He was investigated by former prime minister Imran Khan’s Pakistan Tehrik-e-Insaf (PTI) government for tax evasion, but the charges were found to be false and politically motivated.
Caretaker government
Pakistan will soon be under an independent caretaker government. The country has named senator Anwar ul-Haq Kakar as the prime minister of this dispensation, to ensure a free and fair parliamentary election at the end of the year.
The Supreme Court verdict may not prevent Nawaz Sharif’s return to Pakistan. But whether or not he will be allowed to lead the campaign and participate in the election remains unclear.
A larger bench headed by the new chief justice could find ways to re-examine the verdict and the Act, however, the decision may not necessarily go in favour of the PMLN leadership.
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