On February 21, the Supreme Court of Pakistan debarred Nawaz Sharif from his position as party head of the Pakistan Muslim League-Nawaz (PML-N) under Article 63A of the Constitution due to his disqualification under Articles 62 and 63 of the Constitution.
The debarment shall continue till the time that Sharif remains disqualified.
Sharif could file a review petition against the Supreme Court ruling. He might not need to, though.
While on the surface this may spell curtains for Sharif, his debarment from being party head could actually give him broader reign to influence the PML-N in accordance with his own whims.
A party head, under Article 63A, is empowered to declare that a member of parliament of his/her party defected from the said party’s directives, consequently setting in motion removal of the member from parliament.
However, provisions within Article 63A provide checks and balances against a party head’s carte blanche exercise of power in determining defection.
Analysis: Choices for the ousted prime minister
Article 63A was first introduced via the 14th Amendment in 1997, in which a member of a parliamentary party was deemed to have defected from his/her party if he/she, amongst other things, committed a breach of party discipline or voted contrary to any direction issued by the parliamentary party to which he/she belonged.
These provisions were broad, especially in light of the fact that it contained an ouster provision, whereby defection matters were beyond the jurisdiction of all courts, including the Supreme Court and the High Courts. The head of the party’s decision was final and binding.
However, after the 18th Amendment in 2010, amongst other things, the ouster of jurisdiction clause was removed from Article 63A, and the defection matter has now become justiciable at every stage.
Somewhat similar to the 14th Amendment, a party head is required to give notice whenever a charge of defection under Article 63A is brought against a member.
However, unlike the 14th Amendment, after making a declaration that a member defected, the party head’s declaration is referred to the Chief Election Commissioner, who then lays the declaration before the Election Commission.
The Election Commission has the discretion to confirm or reject the declaration. It is only if the Election Commission confirms the party head’s declaration that a member ceases to be a parliamentarian.
Even then, the Election Commission’s decision is neither final nor binding, as the member/defector may appeal before the Supreme Court.
The Supreme Court ruled that Sharif is now prohibited from exercising any of the powers as party head "or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party."
Now that Sharif is no longer party head under the Constitution, he no longer has to comply with the stringent legal provisions governing the exercise of such power.
In fact, one could argue that Sharif was exposing himself by being party head, and now he can implement his politics in a much more discreet, external and effective manner.
The argument that Sharif is weakened by the Supreme Court’s ruling is premised on the notion that he primarily exercised his power over the PML-N through the legal nomination as party head under the Constitution. This premise is not the absolute truth.
Sharif’s authority over the PML-N emanates from, amongst many reasons, him founding the party, him exercising control and dominion over the party affairs since its inception and, most importantly, his undeniably superior bond with the PML-N constituencies.
As they say, you can take the party head out of the party, but you can’t take the ‘N’ away from the PML-N.
Just as the PML-N appointed Sharif loyalist Shahid Khaqan Abbasi as prime minister after Sharif's ouster, it is not inconceivable that the party head position will, in spirit and purpose, have the same effect — meaning that the position will come with strings attached. And this time, it may just be ideal.
Justice Jawwad S Khawaja’s dissenting note in a 2015 Supreme Court judgment warned about persons existing outside the parliament (including a party head) influencing party members on voting in relation to a Constitution Amendment Bill.
His Lordship remarked that parliamentarians had a fiduciary duty to not be clouded by such external influence in such a situation.
The dissenting note could not strike down legislation and pertained towards only one aspect of defection (voting on Constitution Amendment Bill). However, it is relevant given the current circumstances.
Parliamentarians have an ethical, legal and moral duty to not be susceptible towards undue and unlawful influence by persons existing outside the parliament. The political reality though is a stark contrast.
Knowing this, Sharif will tread carefully, but his influence will undeniably be present, this time without Article 63A and its checks and balances.
He may well adopt the Machiavellian model of de facto political power, whereby the intended effect of such political power is to remove law from the realm of decision-making.