Required — a leap of faith

The real threat of disqualification for Imran Khan may not lie so much in the foreign funding case as non-declaration before ECP of income from sale of Toshakhana gifts during the year 2018 followed in 2019, as annually required. Although the wanting declaration was subsequently made in the 2020, yet on a purely strict and legalistic interpretation of laws and precedent, the failure to make the declaration during the relevant and particular two years can have serious consequences. The spectre of a decision of the Supreme Court of disqualification in a similar case of non-declaration of assets by a former Prime Minister hangs like a sword of Democles in the present matter.

In the Imran Khan Niazi & others Versus Mian Mohammad Nawaz Shareef case, the Supreme Court judgement delivered by a five-member bench headed by Chief Justice Saqib Nisar, decided that Nawaz Shareef was disqualified for life for non-declaration before the ECP in 2013 of “unwithdrawn” receivable salary of UAE Dirhams 10,000 per mensum from his son’s firm.

If the disqualification of Nawaz Shareef, a three-time Prime Minister, by the Supreme Court on the basis of a vague legal provision applied to tenuous and insubstantial evidence cannot be wholly justified, on both ethical or legal grounds, so cannot a possible disqualification of Imran Khan, an ex-Prime Minister, from being so declared, be called as just and proper. Howsoever weak and questionable the credentials of a parliamentary civilian democracy, discrediting and disqualifying politicians, in a not so level or transparent a playing field where other stakeholders in the power game are exempt, who possess large popular mandates is seriously debatable being inimical to promoting strong and viable democratic traditions that are so vital for national survival and development.

The judgement against Nawaz Shareef arguably remains a contentious decision that to this day mars our judicial record. Even the most partisan of opinions continue to express serious reservations on that score. Can a questionable judgment be made the basis of another doubtful decision? Unfortunately bad decisions create bad precedents with worse consequences.

It will not be too farfetched to conclude that the Zia period constitutional amendments inserting the provisions of ‘Sadiq’ and ‘Ameen’ in Article 62(1)(f) were made with the specific purpose to keep politics open only for those who were acceptable to the Zia and the establishment. The provision cannot but be considered as vague and open to various different interpretations as no single definition of what, under Islam, exactly constitutes sagacity and honesty. There is no general agreement on how the terms ‘sagacious, righteous and non-profligate and honest and Ameen’ can be understood or applied.

It is an established principle of law that the intent and purport of any law should be specific rather than be open to various and different interpretations. Laws must restrict the scope for discretion and personal opinion of those responsible for delivering justice in accordance thereto.

For all these reasons the provisions of the Constitution under Articles 62 and 63, being contrary to the standards and yardsticks of natural law and justice as well as reason, need revisiting to remove the element of ambiguity and obscurity. A cryptic law must inevitably lead to instances of avoidable injustice. The more so in matters of state and those that affect the fate of democratic evolution and civilian supremacy in a country trying to institute strong traditions of constitutionalism. Every obstacle towards institutionalising strong democratic norms, practices and traditions, which our evolution as a democratic polity has unfortunately had to face in plenty, needs to be removed for us to realise true democracy.

For civilian supremacy which is another name for the ascendancy of the popular will, it is essential to reassess, amend or delete this provision from the Constitution. For that to occur all the political parties in the National Assembly need to unite to make an amendment to the Constitution with a two-thirds majority. Only that can open the way for this dubious provision that stands in the way of political and democratic evolution to be removed. Can the PDM government come together with the PTI in parliament to rise above party bias and inclinations for the greater cause of restoration of the true spirit of democracy.

In order to provide for equitable legality that is not only done but seen to be done, the Nawaz Shareef judgement similarly needs revisiting and doing away which can be possible through the said constitutional amendment. With the support of a two-thirds majority, the amendment can undo the questionable judgement against Nawaz Shareef and Imran Khan as well, if the latter is so disqualified. What is required is a leap of faith by all the political parties so that for the future a level playing field is provided to all political parties in a free and fair election.

For the sake of strengthening of democracy and civilian supremacy and ensuring that every institution works within its mandated legal purview , it is essential that all political parties get together on this common minimum agenda so that the foundations for movement towards true democracy is laid. This big step may become the forerunner of a tolerant polity where each party pursues its policies by trying to win the mandate of the electorate in a transparent and free manner for the augmentation of true democracy. For only in constitutional parliamentary democracy lies the answer to our myriad problems of national cohesion, rule of law, supremacy of the vote and welfare of the masses.

Published in The Express Tribune, August 11^th, 2022.

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