The Supreme Court (SC), announcing its reserved verdict on Monday, declared lifetime disqualification for lawmakers under Article 62(1)(f) of the Constitution null and void.
The bench hearing the case was headed by Chief Justice of Pakistan Qazi Faez Isa and comprised Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali resumed hearing a set of petitions to determine the disqualification period of lawmakers. The decision was passed by a majority of 6:1; Justice Yahya Afridi dissented from the majority judgment.
The verdict would allow Pakistan Muslim League-Nawaz (PML-N) supreme leader Nawaz Sharif and patron-in-chief of Istehkam-e-Pakistan Party (IPP) Jahangir Tareen to contest the upcoming general elections, scheduled to be held on February 8.
“Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration,” a written order issued by the top court stated.
It stated that there is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification.
“The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution,” the order added.
“Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.”
The top court stated that until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.
“The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled,” it stated.
Justice Yahya Afridi, in his dissenting note, said that the conclusion drawn by the court in Sami Ullah Baloch Versus Abdul Karim Nousherwani case was legally valid.
“With profound respect, I disagree [with the verdict]. For reasons to follow, the extent of lack of qualification of a member of the Parliament, a envisaged under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force,” he added. The SC, on January 5, reserved its decision in the matter related to the re-examining of the lifetime disqualification of lawmakers under Article 62 (1) (f) of the Constitution with Chief Justice of Pakistan Justice Qazi Faez Isa favouring the “original Constitution”, lamenting “encroachments” made into the country’s bill of rights over the years.
“We are disregarding the fact that why these amendments were brought into the Constitution. We are disregarding the fact that the original Constitution has a greater sanctity than amendments brought unless there are such amendments which enable to serve the people better,” Chief Justice Qazi Faez Isa while heading a seven-member larger bench said. The CJP said, “We will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon God willing.”
The inconsistency between court decisions and parliamentary legislation regarding the duration of disqualification under Article 62(1)(f) has prompted the apex court to intervene and determine whether the disqualification of a lawmaker should be for a lifetime or five years stipulated in the Elections Act. The disqualification conundrum stems from the addition of Article 62(1)(f) to the Constitution by former military ruler Gen Ziaul Haq. However, the issue gained prominence when a larger bench of the Supreme Court disqualified former prime minister Nawaz Sharif for life in the Panama Papers case.
