Daily Times

Last Friday, the honourable Chief Justice of Pakistan Justice Mian Saqib Nisar, during a hearing of an election petition regarding cantonment board of Multan, remarked that disqualification under Article 62(1)(f) of the Constitution is debatable and the Supreme Court will decide whether the disqualification of a parliamentarian, under Article 62 (1)(f), is for life or not.

If this imminent proposition is to affect the political future of one political frontrunner, it is none, but Mian Muhammad Nawaz Sharif, who was declared dishonest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution, in the 28th July, 2017, judgment on the Panama Papers case handed down by the Apex Court.

Originally, Article 62 (1) of the Constitution enumerated four qualifications that were required for a person to be elected as member of the parliament. Subsequently, through Presidential Order No. 14 of 1985, the relatively simpler version of Article 62(1), which did not require a legislator to be ‘Sadiq’ and ‘Ameen’, was substituted with the present one, which includes several qualifications mostly pertaining to Islamic injunctions. Even though there have been instances where the amendment of Articles 62 and 63 was vociferously proposed, ironically enough, PML-N had, unswervingly, opposed any such amendment, but who would have thought that the same provisions of the Constitution would become the reason for Nawaz Sharif’s undoing.

Now, the five-member larger bench comprising of the Chief Justice Mian Saqib Nisar, Justice Azmat Saeed Sheikh, Justice Umar Ata Bandial, Justice Sajjad Ali Shah, and Justice Ijaz-ul-Ahsan have taken upon themselves to interpret the provision of the Article 62(1)(f) of the Constitution so as to determine whether the disqualified politicians can ever contest in the general elections, particularly, because time period is stipulated for barring a person from becoming a parliamentarian disqualified under different clauses of Article 63 of the Constitution and no such time duration has been prescribed if a person is disqualified under Article 62 (1)(f).

Even though there have been instances where the amendment of Articles 62 and 63 was vociferously proposed, ironically enough, PML-N had, unswervingly, opposed any such amendment, but who would have thought that the same provisions of the Constitution would become the reason for Nawaz Sharif’s undoing

This, however, is not the first instance the honourable Supreme Court is adjudicating upon this constitutional issue. Keeping in view, precedents of former Chief Justice Iftikhar Muhammad Chaudhry’s court, any person, once disqualified under certain provision of Article 63 of the Constitution of Pakistan can contest for the election after a lapse of time period mentioned in the said Article.

However, owing to the permanent nature of qualifications for membership of the Parliament, a person who does not qualify under Article 62 (1)(f) of the Constitution cannot ever become qualified by efflux of time. The apex Court in one of the cases i.e. Abdul Ghafoor Lehri Vs Returning Officer, PB-29, Naseerabad-II and others cited as 2013 SCMR 1271, has adjudicated that disqualification of a person under Article 62 (1)(f) will not end with the passage of certain time.

In Allah Din Khan Bhayo Vs. ECP, the Apex Court, in regards to Article 62 (1)(f), had held that the ‘framers’ of the Constitution, intentionally preferred not to prescribe any time period during which qualifications could be acquired by a person who had been declared to possess such qualifications.

A perusal of the aforementioned cases and even a cursory look at the relevant jurisprudence, during the Iftikhar Chaudhary era safely concludes that since Article 62 (1)(f) does not stipulate a time period after which a disqualified parliamentarian can re-contest the elections, such absence of qualifications can never be attained. In a nutshell, a person, once disqualified under article 62 (1)(f) shall be ineligible to contest the elections forever, even if he repents and mends his way of life, unless, of course, a Court of law decides otherwise. However, reviewing the contours of Article 62 (1)(f) and settling the controversy concerning the disqualification of parliamentarians, once and for all, especially during the existing politico-legal environment, is commendable. The upcoming hearings will keenly be observed by the PML (N) supporters considering that there was no legal way, which Nawaz Sharif and his supporters, could have opted for, in order to prove his integrity and honesty, as the Panama Papers judgment as well as the subsequent dismissal of review petitions filed by the deposed prime minister had declared Nawaz Sharif as “dishonest” on the account of furnishing false declaration of assets of solemn affirmation. Moreover, our constitutional framework did not provide a right of appeal, which could have been exercised by the ousted prime minister, against a judgment passed under Article 184 (3) of the Constitution.

Interestingly, this is the first time that a five-member bench has been constituted to decide the implications of 62 (1)(f) and ultimately, the political fate of one of the biggest political parties of country. It is also probably the first time in Pakistan’s history that Chief Judge of the Supreme Court, despite the verbal crossfire with the disqualified prime minister, has decided to head the five-member bench. And, it is the first time that a decision of the honourable Supreme Court will directly impact the political future of a former prime minister, who had been ousted by the Supreme Court itself.

All things considered, the significance and repercussions of the decision by this five-member bench cannot be trivialized. It can either be a final nail in the political coffin or the silver lining, the PML(N) supporters were waiting for. It can either protect individual rights or side with the popular opposition. It can either promote judicial independence or facilitate democratic control of the judiciary. It can either sustain the institutional legitimacy of the judiciary or submit to public preferences.

In this constitutionally relevant time — when the honourable judges of our Apex Court will have to put forward a sensible and moderate judicial interpretation to check the possible insidious impact of Article 62 (1)(f) of the Constitution, specially following the public altercation between the deposed prime minister and the Chief Justice of Pakistan — the five-member Bench of the honorable Supreme Court has to ensure that not only must justice be done; it must also be seen to be done.

The writer is a lawyer based in Lahore. He has a Masters in Law from University of California, Berkeley. He can be contacted at aitzaz@berkeley.edu

Published in Daily Times, January 31^st 2018.