Can a country’s citizens nullify the criminal cases that a popular leader faces by handing them an electoral victory in the general elections? This question raises issues that could prove pivotal to the political processes in Pakistan and the US, pertaining respectively to their former prime minister Imran Khan and former President Donald Trump. Its framing builds on the notion of jury nullification, an ancient common law tradition under which a jury in a criminal trial acquits the defendant because they think the law is unjust or oppressive. In old England, jury nullification was a jury obligation in cases where the jury unanimously believed that the law was unjust. However, now juries are instructed to follow the law. The US legal system has many safeguards against jury nullifications, making it increasingly difficult for juries to ignore the law. Yet, as long as juries hear cases, their unrecognized but enormous power to ignore the law and acquit the defendant will remain intact. Unlike a judge, the jury can be lawless in acquitting a criminal defendant, yet “the government is not allowed to appeal from an acquittal by a jury.”
In mirroring jury nullification, there is no theory of democratic nullification in any legal system under which a leader charged with crimes may demand, as a matter of democratic right, that the system respect their victory in general elections, quash the cases against them, and allow them to serve the people. Yet, the argument for democratic nullification, even if innovative, is far from frivolous.
Consider the parallel. The court instructs the jury regarding the law, yet the jury acquits the defendant after hearing the evidence of the crime. Likewise, the citizens knowingly and deliberately exercise the electoral power to ignore the evidence of criminal charges against a candidate and elect them. Like the defendant’s acquittal in a jury trial, the candidate’s electoral victory in an election serves as nullification of charges and convictions against them. The parallel between jury nullification and electoral nullification is not perfect and is subject to dispute. Many legal systems, including Pakistan, do not have jury trials. Yet, the question is whether, in a competitive democracy, the people have the power to elect a candidate charged with crimes and demand that their chosen candidate serve them instead of rotting in prison. Democratic nullification stands on its own feet, not jury nullification.
Although Pakistan is a parliamentary democracy, it operates as a presidential system because people vote for the charismatic heads of political parties, like Sharif, Bhutto, and Khan, much more than for the district candidates that the parties launch in the elections. In the February 8 elections, millions of people voted for the incarcerated Khan, and even the winning candidates of the Khan’s party said openly and proudly that they had won because of Khan.
This commentary argues for Imran Khan’s release from criminal cases. (Trump’s cases for democratic nullification will gather momentum if he is elected in November.) Khan’s case for electoral nullification is ripe. Khan was convicted in three cases shortly before the February 8 general elections and disqualified for ten years from running for Parliament. Despite these hurriedly proclaimed convictions and disqualifications, the citizens of Pakistan elected Khan’s political party in numbers far more than any other political party. Furthermore, his supporters contend that Khan is a political prisoner. They demand that Khan be freed from prison to lead the political party he directs under severe restrictions.
Is Imran Khan a Political Prisoner?
Khan had no criminal record before he was elected prime minister in 2018. However, in March 2022, opposition parties removed Khan from office in a vote of no confidence in Parliament. Khan accused the United States and the Pakistan generals of engineering his downfall. Since his removal, Khan has faced hundreds of cases ranging from selling gifts he received from Saudi Arabia, disclosing state secrets, inciting violence against military installations, and marrying a divorced woman contrary to Islamic law. Khan’s supporters, including prominent lawyers, see these criminal cases as payback for Khan’s criticisms of the army generals as traitors and servants of the United States.
In Pakistan, filing cases against celebrity leaders who infuriate military generals is a vendetta sport. The criminal justice system and the National Accountability Bureau revel in making and unmaking criminal and corruption cases against political leaders of all stripes. While Khan faced new criminal charges by the day, the old cases against former prime minister Nawaz Sharif were vacated, undoing Sharif’s prior disqualification to run for office. “Sharif in, Khan out” was the media mantra of the February 8 general elections, hinting at the general’s favorite.
Under the generals’ direction, the Pakistan criminal justice system works as a mystery thriller. What has been propagandized for decades as a serious corruption case against a disfavored leader suddenly disappears if the leader regains favor with the establishment, a covert name for the generals in power. Numerous senior members of the Khan’s party, Tahreek e-Insaf, charged with crimes against the military are either in prison or hiding from law enforcement agencies. Many could not run in the February 8 general elections. Sitting in prison, Khan appointed unknown candidates (the so-called C-team) to run against the contenders of favored political parties.
To make matters worse for Khan, the Pakistan Supreme Court deprived Khan’s party of its electoral symbol days before the elections: Khan had selected a cricket bat as the election symbol to remind voters of Khan’s status as a cricket celebrity. Pakistan’s half-literate electorate votes on symbols like arrow or lion. After losing the party symbol, Khan’s candidates ran on dozens of separate symbols, creating confusion among the voters to identify Khan’s party. Sadly, the Supreme Court did not grasp the symbols’ centrality for millions of voters who cannot read the names of candidates or parties printed on the ballot.
Against massive odds, Khan’s political party won the most seats in the National Assembly. Khan and his supporters claim that his party has won many more seats, but the establishment has rigged the elections against Khan’s candidates to make room for other parties in the National Assembly. To maintain their interventionist supremacy, a common perception prevails that the generals do not want any one political party to command a majority in Parliament. However, freely flying accusations against the military must be cautiously taken. The military takes more blame than it deserves and is an easy scapegoat for candidates losing elections. Every losing political party, nearly a dozen, sees itself as a victim of the military establishment.
Democratic/Electoral Nullification
In A Theory of Universal Democracy, I argue that a revolution is legitimate if the people subsequently elect revolutionaries in free and fair elections. Derived from that argument, I believe a vibrant democracy empowers the people to ignore the criminal charges against a candidate and elect them for office. If the candidate wins, the voters have nullified the criminal charges. This nullification makes even more sense for a leader, such as Imran Khan, whose political party wins significant seats in a parliamentary democracy, or for the US president, an office for which the entire electorate votes. A parliamentary leader or the president must win the general elections to claim electoral nullification. The system retains its power to prosecute candidates for their prior crimes if they lose the election because, impliedly, the people have refused to nullify the charges against them.
On the face of it, electoral nullification seems like an endorsement of lawlessness and advocacy for weakening the rule of law. Electoral nullification reinforces the widespread impression that the wealthy, the powerful, and the charismatic leaders get away with murder after acquiring power. However, democracy views such apprehensions more carefully. One historical argument of royalists, aristocrats, and oligarchs against democracy is the inherent distrust of the people in choosing rulers. Here and there, as history demonstrates, democracy does fail by electing dangerous leaders. But every form of government runs the risk of selecting wicked rulers. At least, competitive democracy empowers the people to correct the wrong by voting out a prior pick.
Jurisprudentially, electoral nullification highlights the tension between competing democratic values. The people’s right to elect a leader of their choice competes with the system’s integrity to punish those who commit crimes, regardless of who they are. In this tension, democracy tilts toward electoral nullification. Nullification is critical for safeguarding democracy in a corrupt political system that fabricates cases against leaders to exclude them from power, as the Khan supporters claim is the case. A robust right to democracy goes further: Even if the criminal justice system is nonpolitical and immune from external influence, the people have the right to elect a leader convicted in one or more criminal cases.
Democracy does not support any extensive disqualification of candidates. Since democracy is a competitive political system, the opponents can persuade the people not to elect a criminally charged or convicted candidate. A system that prescreens candidates for crimes and disqualifies them, as is the case of Imran Khan, severely compromises the people’s right to elect a leader of their choice. If a convicted leader wins, the system must respect democracy and let the people have their leader. This systemic concession is democratic nullification.
Suppose Pakistan’s February 8 elections were fair, something very few people would concede. According to the announced election results, Khan’s political party is the leading party in the National Assembly. The people have a democratic right to demand that Khan, as the party head, be released from prison to lead his party. If Pakistan were a robust democracy, it would permit Khan to run for Parliament, respecting the people’s power of electoral nullification. Meanwhile, since only courts can parole Khan from incarceration, the Pakistan high courts must step forward to defend democracy and end the farce of a winning party head running the party affairs from the prison cell. A presidential pardon is another available legal method to enforce democratic nullification.
Khan, too, needs to understand what the electorate expects him to do. The people did not vote for Khan to fight the army or burn military installations. Nor have the people given him the mandate to imprison political opponents, calling them thieves, as he did before. Khan must use good diplomatic sense before publicly hurling accusations at foreign countries. Unfortunately, Khan’s track record of fiery rhetoric and poor personnel choices to run provincial governments is dismal. Khan has been unable to figure out whether he is a revolutionary determined to subvert the system or a politician willing to collaborate with other parties to forge effective social and economic policies for the people struggling in a nonperforming economy. Khan must understand that the people of Pakistan want democracy to work, and the generals need to know that they weaken the armed forces by continually interfering in political processes.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com.
