Pakistan's Disqualification Doctrine and Nawaz Sharif

Sadaf Aziz

Shaikh Ahmad Hassan School of Law

The July 2017 removal of the Prime Minister of Pakistan, Nawaz Sharif, continues to be at the center of debates concerning the strength of anti-democratic establishment forces (e.g. the military) and the future of democracy in Pakistan. With a recent review upholding Sharif’s lifetime disqualification just months before the end of this government’s tenure, concerns have arisen on what implications this has on a free and fair election scheduled for this summer.

Sharif is not the first sitting Prime Minister in Pakistan’s history to be removed from office by a court order, but the myriad of cases through which his political fortunes have been foreshortened establish a new and heightened threshold of judicial intervention in the political sphere of the country. These cases stem from a petition that was granted hearing by the Supreme Court, after a lengthy set of negotiations across party lines failed to deliver a formula to investigate the potential wrongdoing of public officeholders in relation to the Panama Papers revelations.

Following an unsuccessful but lengthy bid to nullify the results of the 2013 elections on the basis of rigging allegations, the opposition Pakistan Tehreek-e-Insaf (PTI) headed by Imran Khan declared the Panama Papers, which named Nawaz’s three children as beneficial owners of offshore accounts, to be ‘God sent’. It was widely rumored during the rigging allegations that PTI were supported by the army in a bid to undermine the primacy of the elected government in decision-making around matters of foreign policy and internal security. The Panama revelations provided the opposition and establishment forces with ultimately a more potent means of disciplining the sitting government.

Although the Sharifs are a leading industrial family with independent sources of wealth, the fact that Nawaz had served as Prime Minister for two truncated terms through the 1990s, and his children were minors (in some cases listed as dependents) at the time the accounts were established, gave concern about the misappropriation of public funds. According to the national accountability law, a public officeholder is said to have committed the offence of corruption if their assets are disproportionate to their known sources of income. Inconsistencies in explaining the acquisition of some very expensive London real estate had already led to an accountability investigation of Sharif after his ouster from office in the late 1990’s.

Six months of hearings displayed an inept and inconsistent defense brought on behalf of the Sharif clan; Qatari princes were brought into the fray as having done business with the Sharifs through customary cash transfers.  At one pivotal juncture, a property deed presented in support of Sharif’s daughter Mariam was printed in a font reportedly not in existence on the date of its signing.  A preliminary judgment was issued on April 20th, where the five-member Supreme Court bench established a Joint Investigative Team (JIT) to undertake more detailed fact finding on the allegations of money laundering.  Although not anomalous in the recent history of judicial innovation, the composition of the JIT was criticized for including officials of the intelligence agencies amongst its members.

After the JIT presented its findings, the court was then handed evidence of Nawaz being in possession of an Aqama, a work permit granted to him as director of one of his son Hassan’s companies registered in the UAE.  His non-declaration of this ‘asset’ in his financial disclosures prior to running for office was found to be sufficient evidence of Sharif falling short of the constitutionally enshrined qualification criteria for holding elected office.  The rest of the allegations (which purportedly needed more in-depth forensic investigation) were forwarded to an accountability court for further trial, with the promised oversight of the Supreme Court itself.

There is little doubt the specific mechanisms that have been employed to effect Sharif’s disqualification are the provenance of establishment forces.  Articles 62 and 63 of the 1973 Constitution, respectively titled Qualifications and Disqualifications, were initially quite minimal. On the eve of restoring legislative assemblies after a prolonged period of military rule, General Zia supplemented these with an additional set of criteria, incorporated by the Eighth Amendment to the Constitution in 1985.  The extra qualifications provided not only that the candidate be Muslim but also that such a person be of ‘good character’ and not known as ‘one who violates Islamic Injunctions’. In addition, article 62 also provides that the person must have ‘knowledge of Islamic teachings and practice obligatory duties prescribed by Islam’ and be ‘sagacious, righteous and non-profligate and honest and ameen (righteous)’.

Since their inception politicians as well as jurors have both assailed, and been reluctant to use this qualification criteria as they establish impossible standards of conduct.  Nonetheless, these qualifications have remained in the Constitution, even while other amendments made by Zia were later revised. In part, this reflects the general immovability of laws made in the promotion of Islam and a general Islamic piety in society. In the shortsighted scheming of Pakistani politicians, it also reflects the willingness of opposition politicians to retain this mechanism of checking their rivals.

Other than the shallow evidentiary basis for finding Nawaz insufficiently qualified to hold office, concern has been expressed that the disqualification is set to last for a lifetime.  This is not expressly provided in the Constitution but has recently accompanied disqualifications for those found guilty of fraudulent misrepresentation about their educational qualifications. When a previous Prime Minister was unseated by the Supreme Court it was on the basis of criteria specifically appended with a disqualification for five years; in 2012,  Prime Minister Syed Yousaf Raza Gillani was convicted of contempt of court for not pursuing cases of corruption against then President, Asif Zardari.

This latest instance of judicial intervention in politics has more polite commentators referring to the “judicialization of politics” in Pakistan.  If it is, it is of a very limited sort.  We do not see courts empowered by the creeping legalization of social and economic life nor is this akin to the judicial pushback against authoritarianism that gained broad public support during the famous 2007 lawyers movement.  Instead, particularly in the recent judgment of February 21st by which Nawaz Sharif was also found unfit to be party chairperson, fundamental rights such as the right to association are being narrowed and limited for everyone.

In this context, it is not surprising that the Pakistan Muslim League (Sharif’s party) is reframing the evidence of its continued popular support, as gauged by a spate of recent by-elections, to assert there is a power higher than the Supreme Court in the country – the ‘people’s court’ of the ballot box.   However, while speculation about the capture of the Supreme Court by establishment forces is rife, it is also non-conclusive.  Far more worry could follow in this drama.  It is not an unfamiliar script for Nawaz Sharif, who has been named as amongst the politicians offered financial inducements by the military and intelligence services to form a multi-party political coalition charged with the task of ‘derailing democracy’ in 1990.  That Sharif is currently perceived as the best contender for saving democracy in the country is more indicative of the unruly and voracious appetites of anti-democratic forces than of his personal credentials. 

Professor Sadaf Aziz is Assistant Professor at the Shaikh Ahmad Hassan School of Law (Lahore University of Management Sciences). Professor Aziz is one of the Shaikh Ahmad Hassan School of Law’s founding faculty members, where she has taught in the areas of Jurisprudence and Labour Law. Professor Aziz has held visiting fellowships at the universities of Cambridge, Michigan, Oxford and NYU.