January 10, 2024
ISLAMABAD – The Supreme Court on Monday scrapped its 2018 judgement by a majority of six to one, which had permanently shut the doors of parliament for lawmakers disqualified under Article 62(1)(f) of the Constitution for not being ‘honest and righteous’.
The majority judgement announced by Chief Justice Qazi Faez Isa at 5:15pm explained that the interpretation of Article 62(1)(f) slapping a life ban — as taken in the 2018 Samiullah Baloch case — was beyond the scope of the article itself since the provision was not self-executory.
The seven-judge bench comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali had taken up a number of appeals moved by the appellants who were disqualified from contesting the elections or their nomination papers were rejected.
The court had taken up the matter to determine whether the disqualification for life under Article 62(1)(f) of the Constitution as commanded earlier in the 2018 Samiullah Baloch case will prevail or the 2023 amendments in the Elections Act 2017 that reduced the ineligibility period to five years only.
With elections just round the corner, the judgement also rejuvenated the hopes of former prime minister Nawaz Sharif for his return to the election arena after being disqualified in the Panama Papers leak case on July 28, 2017.
Similarly, Istehkam-i-Pakistan Party (IPP) patron Jahangir Khan Tareen, who was disqualified under Article 62(1)(f) on Dec 15, 2017, by the Supreme Court in the Hanif Abbasi case, will also be able to contest the polls.
Former additional attorney general (AAG) Tariq Mehmood Khokhar was quick to respond to the short order by describing it as “constitutional relativism”. “Our history is replete with bending moments when we bend our jurisprudence to redefine justice,” the former AAG said.
“I fear time is propitious for pick and choose: who should be accountable and who should not be accountable,” Tariq Khokhar said, adding he would not comment on the merits of the case, but mused on the “allure of raw power”.
The judgement explained the interpretation of Article 62(1)(f) 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 was beyond the scope of the said article and amounted to reading into the Constitution.
Justice Yayha Afridi, however, disagreed with the judgement, saying the extent of the lack of qualification of a member of the parliament, as envisaged under Article 62(1)(f) was neither lifelong nor permanent and the same will remain effective only during the period the declaration made by a court of law remains in force. “Therefore, the conclusion so drawn by the 2018 Supreme Court was legally valid, hence affirmed.”
‘Not a self-executory provision’
When the bench assembled in the evening to announce the verdict, the chief justice explained the court wanted to finish the matter since the election schedule had been announced.
The detailed reasons of the majority as well as the minority judgments will come later.
The judgement said Article 62(1)(f) was not a self-executory provision as it does not by itself specify the court of law that was to make the declaration mentioned therein nor does it provide for any procedure for making any period for disqualification incurred by such declaration.
Likewise, no law provides for the procedure, process and identification of the court of law for making the declaration mentioned in Article 62(1)(f) and the duration of such a declaration, for the purpose of disqualification, to meet the requirements of the fundamental right to a fair trial and due process guaranteed by Article 10A of the Constitution.
The bench explained the reading into the Constitution was 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.
Until a law is enacted, the short order said, to make its provisions executory, Article 62(1)(f) 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.
Article 62(1)(d) spells out the qualification of the lawmakers by stating he should be of good character and was not commonly known as one who violates Islamic injunctions.
Likewise, Article 62(1)(e) says the candidate must have adequate knowledge of Islamic teachings and practice obligatory duties prescribed by Islam as well as abstain from major sins, while under Article 62(1)(g) a person has not worked against the integrity of the country or opposed the ideology of Pakistan.
Since Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 on June 26, 2023, was already in the field and was not challenged, therefore there was no need to examine its validity and scope in the present case. Section 232(2) prescribes five years of disqualification under Article 62(1)(f).
The Supreme Court also allowed the withdrawal of a 2022 petition moved under Article 184(3) of the Constitution by the Supreme Court Bar Association (SCBA).
The petition was under objection and was not numbered.
Decision hailed
The decision of the top court was lauded by the IPP and the PML-N.
“History has vindicated former premier Nawaz Sharif and restored his honour, while former chief justice of Pakistan Saqib Nisar’s short-lived vengeful act has been discarded,” PML-N spokesperson Marriyum Aurangzeb said in a statement on Monday.
She said the decision by the apex court re-established the supremacy of the Constitution.
“The architects of this sinister provision in the law should be held accountable for adulterating the Constitution…,” she said.
“Only the people of Pakistan had the power through their vote to qualify or disqualify their representatives,” the former minister declared.
IPP President Aleem Khan congratulated PML-N leader Nawaz Sharif and IPP leader Jahangir Khan Tareen for being able to participate in national politics in light of the judgement.