Supreme Court annuls lifetime disqualification of politicians

The Supreme Court of Pakistan Monday annulled the lifetime disqualification of politicians in a case regarding the interpretation of Article 62 (1)(f) related to the lifetime disqualification of lawmakers.

Chief Justice of Pakistan (CJP) Qazi Faez announced the reserved verdict passed by a majority of 6:1 during a live broadcast.

The Supreme Court also annulled the decision in the Samiulla Baloch case. The court ruled that parliamentarians would be barred from holding office for five years under the law.

Justice Yahya Afridi dissented the decision.

The Supreme Court declared that no person can be barred for a lifetime from running in elections if they are disqualified under Article 62 (1)(f), setting aside its landmark judgment in the Samiullah Baloch case.

Article 62(1)(f), which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous), is the same provision under which former prime minister Nawaz Sharif was disqualified in the Panama Papers case. Istehkam-i-Pakistan leader Jahangir Tareen was also disqualified under the same provision.

Following today’s verdict, both Nawaz and Tareen have been cleared to contest the elections.

The apex court had reserved its verdict in the case on January 5, after arguments were completed.

While reserving the verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa had said that a short order would be announced soon.

A seven-member larger bench — headed by CJP Isa and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali — had conducted the hearing.

While announcing the reserved verdict, the chief justice noted that since the election schedule was issued, it was “necessary” to release the order at the earliest.

In the written order, the SC noted that Article 62(1)(f) of the Constitution is not a self-executory provision as it does not by itself specify any period for disqualification.

“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 thereunder, to meet the requirements of the Fundamental Right to a fair trial and due process guaranteed by Article 10A of the Constitution.”

The court said 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”.

“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,” it added.

The court further ruled that until a law was enacted to make its provision executory, Article 62(1)(f) stood on a similar footing as Article 62(1)(d)(e)(g) — which talks about the qualification of a lawmaker — and served as a guideline for voters in exercising their right to vote.

“The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) 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,” the SC added.

It further noted that the recent amendments to the Elections Act prescribed five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and had also made such declaration subject to the due process of law.

“This provision is already in field, and there remains no need to examine its validity and scope in the present case,” the top court ruled.

In his dissent note, Justice Afridi said he disagreed with his fellow judges in the seven-member bench.

He noted that the extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) was “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”.

Therefore, the conclusion so drawn by this court in Sami Ullah Baloch Versus Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed, Justice Afridi added.