In declaring the Sharif brothers eligible, the Supreme Court has relied mainly on a technicality. Here is the relavent portion of their initial judgement:
The mandate of Article 225 of the Constitution has not been appreciated in the context of the instant cases. This Article places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of Peoples Act, 1976. In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Article 199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry.
Here is what Article 199 of the Constitution says with regards to elected officials:
Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law…requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office
First, I think the Supreme Court is unduly narrowing the scope of Article 199 by claiming it can only be invoked in “exceptional circumstances.” More importantly, this judgement shows that the Supreme Court decided what verdict they were going to arrive at and then tried to come up with a way to make this pre-determined verdict sound vaguely legal. Nowhere does it say that this clause can only be invoked if the “alleged disqualification is floating on record and requiring no probe and enquiry.” In my opinion, the only reason this language has been employed is that in the Sharif case there is a dispute over a document that would definitevely prove wheter the Sharifs are eligible to stand for elections. The Sharifs claim that they were granted a full pardon by then President Musharraf, while Musharraf contended that he commuted their sentences without pardoning them. Now, since both parties seem reluctant to release the text of the agreement, I think it is incumbent on the courts, as the only competent bodies with the ability to force the production of this document, to hear this case. Indeed, both the Lahore High Court and the Supreme Court have been derelict in not demanding that the agreement be presented to them. Once the text is public, the judgement becomes relatively simple; either the Sharifs are convicts who are not eligible to stand for elections or they have been pardoned for their crimes and are free to stand for political office.
On the presidential pardon, the Supreme Court had this to say:
To allege that it [the presidential pardon] was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry.
On the face of it, this is exactly correct. I just have no reason, other than plain politics, why the court did not undertake this factual enquiry. Isn’t adjudacating disputed agreements within the purview of the Supreme Court? Many members of the judiciary certainly seem to think everything else, including the lyrics of pop songs, is properly investigated by them.
Another point I have in relation to this judgement is this sentence:
Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which in the judgment under review has been described as, ““enforced by a brutal force, by deviating from constitutional provisions,” triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merit to be interfered with in the review jurisdiction.
The Supreme Court is playing politics with this again. So far, they have not ruled on the constitionality of Musharraf’s actions, most likely because whatever deal the PCO judges hashed out to ensure their return stipulated that they would not take Musharraf to task. But until they specifically rule on the constituionality of Musharraf’s actions, those actions are legal under the law and the Supreme Court certainly has no right to use their supposed unconstitutionality as a factor in their judgements.
All this said, I do think it is patently unfair that the Sharifs are not allowed to stand for election while a vast number of PPP convicts pardoned under the NRO, are eligible (Please note that while I think their disqualification is unfair I do not think it is illegal). There are ways this situation can be rectified within the confines of the law.
1) The Supreme Court can make the NRO non-applicable. Legally, it cannot dissmiss the NRO itself as unconstitutional as the executive’s authority to pardon convicts and commute sentences is absolute. But it could declare Musharraf’s election to the presidency illegal, thereby making all the orders passed by Musharraf inoperable.
2) The president can expand the scope of the NRO by pardoning the Sharif brothers.
The main problem I had with the Justice Chaudhry Supreme Court is that its members saw themselves as political players, even before Musharraf dismissed them and essentially forced them to become politicised. Their judgements showed that they regarded themselves as policy makers and not disinterested observers whose only job was to enforce the Constitution and the rule of law. The Sharif judgement shows that nothing has changed in that regard.