Interpretation of Article 62(1)(f): Supreme Court reserves verdict in lifetime disqualification case

“No one has challenged five-year disqualification law,” says CJP during hearing of lawmakers' disqualification case

By
Maryam Nawaz

Supreme Court larger bench led by CJP Qazi Faez Isa hears lawmakers disqualification case on January 5, 2023. — Screengrab/YouTube/SC
Supreme Court larger bench led by CJP Qazi Faez Isa hears lawmakers' disqualification case on January 5, 2023. — Screengrab/YouTube/SC

ISLAMABAD: The Supreme Court on Friday reserved the verdict in the case pertaining to the lifetime disqualification of lawmakers under Article 62(1)(F) of the Constitution after arguments were completed.

While reserving the verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa 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 — conducted the hearing.

The apex court had taken notice of contradictions regarding the duration of disqualification in the Election Act, 2017, and an apex court verdict during a past hearing on a petition filed by former PML-N provincial lawmaker Sardar Meer Badshah Khan Qaisrani last month.

Qaisrani had challenged his lifetime disqualification over a fake degree in 2007.

Proceedings were broadcast live on SC's website and YouTube channel. 

In the previous hearing on Thursday, CJP Isa remarked that disqualifying anyone for life from parliament was "against Islam", adding that the court was seeking “clarity” on whether the disqualification period for a lawmaker was five years — as per the amendment in Election Act 2017 — or a lifetime ban under the aforementioned article which deals with the criteria to contest elections.

CJP Isa said that the solution to this matter is present in Islam.

"The Holy Quran mentions that the status of humans is very high," the top judge said, referring to a verse from Surah Sajdah which explains that human beings are not bad but their deeds are.

"Disqualifying anyone [for life] is against Islam," he added.

Today's hearing

As the proceedings commenced today, CJP Isa said that the top court would not take up individual cases related to elections but would only hear matters related to constitutional interpretation.

Following this, Jahangir Tareen's lawyer, Advocate Makhdoom Ali Khan, started his arguments.

Justice Shah questioned Khan if according to him, the declaration of disqualification would come from the civil court. To this, Advocate Khan replied in the positive.

Justice Mazhar then asked whether Article 62(1)(f) can be implemented before the elections or even after the polls.

At this, Khan replied, "The candidate is disqualified pre-elections if we read Articles 62 and 62 together".

After this, the CJP asked, "Why are we limiting ourselves to only one specific part of the Constitution and disregarding the constitutional history and fundamental rights?"

"Do not limit yourself and as a constitutional expert, explain to us in a broader context," the CJP told the lawyer.

Tareen’s counsel Khan implored the larger bench to overturn the Samiullah Baloch case verdict wherein the top court held that the disqualification period under Article 62(1)(F) will be for life. 

"Does any other country have such a stringent test for parliamentarians? Are our politicos different from the politicians of the world?" the chief justice asked, saying that lifetime disqualification should have some “logic” behind it.

After this, Justice Mandokhail inquired whether a lawmaker, who was sentenced for fraud, contest polls after completing his sentence.

At this, Advocate Khan replied that one can contest the polls after serving the sentence. "The sentence for corrupt practices is two years," he added.

At this point, Justice Hilali asked whether an entire constituency could be affected by the mistake of one person. "If a court declares someone dishonest but the society considers that person honest then what will happen to the verdict?" Hilali asked.

"Can the court suspend Section 232 of the Election Act?" interjected Justice Mazhar. At this, Advocate Khan said that a petition against the said clause is necessary, and only then the court could take a decision on the amendment.

Justice Mazhar asked if the returning officer could give a declaration after finding out a candidate had lied in his papers. To this, the lawyer replied in the negative, adding that a high court can give a declaration under Article 199.

At this point, the lawyer said that the court must suspend the decision of lifetime disqualification in the Samiullah Baloch case.

Justice Shah inquired whether amendments could be made to the Constitution through sub-constitutional legislation. At this, CJP Isa replied that amendments can be made through legislation.

CJP Isa said he cannot give a declaration on a politician’s character.

“But what will happen to the constitutional provisions related to the character? Justice Mansoor Ali Shah remarked.

The chief justice responded to him and said: “The answer is that the framers of the 1973 Constitution were wiser.”

He added that some people later made some additions to the Constitution, as they thought to bring in an amendment to disqualify anyone anytime.

CJP Isa also remarked that if silence is maintained in the Constitution on any matter, there must be a reason for it.

“When I say I don't want to make a decision on something, that is also a decision,” he maintained.

He added that the Parliament will decide what to do.

Attorney General for Pakistan (AGP) Mansoor Usman Awan said that the court of law was not declared in the Samiullah Baloch judgment. He said that the matter was also discussed in Ishaq Khakwani Case in 2015 by a seven-member larger bench of the apex court.

Supreme Court must declare that who can give declaration against politicians, he stressed.

"Samiullah Baloch judgment is not correct. It discussed something that was left open by the Constitution," the AGP said, adding that the judgement took away the shield given to the politicians by the Constitution.

The case

The fate of many politicians, including Pakistan Muslim League-Nawaz (PML-N) supremo Nawaz Sharif and Istehkam-e-Pakistan Party (IPP) founder Jahangir Tareen, depends on the verdict of this case.

Whether the aforementioned politicians can contest the upcoming polls or not will be determined by the outcome of the case.

The SC conducted the last hearing of this case on January 2, during which CJP Isa advised against assuming that a particular party was being favoured.

Earlier, during a hearing on December 11 last year, CJP Faez Isa observed that the Supreme Court’s judgment on lifetime disqualification and the amendments made to the Elections Act 2017 could not exist simultaneously.

He had said either the legislation enacted by the parliament to the Elections Act 2017 would prevail or the judgment, delivered by the Supreme Court.

“The issue has to be settled once and for all,” the CJP had remarked and referred the matter to a three-member committee, constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 that decides fixation of cases before benches of the apex court.

The Supreme Court, in a judgment in 2018, had held that any person disqualified under Article 62(1)(f) of the Constitution would be considered disqualified for lifetime.

Later on, the former coalition government of Pakistan Democratic Movement (PDM) made an amendment to the Elections Act 2017, decreasing the legislators’ disqualification to five years, retrospectively.

Former three-time prime minister Nawaz and IPP chief Tareen are the two prominent political leaders who were disqualified for life in June and December 2017, respectively, after they were found to be "dishonest" under Article 62(1)(f) of the Constitution.