The recent verdict enunciated by the honourable supreme court of Pakistan regarding the interpretation of Article 62(1)(f) of the constitution has resulted in the disqualification of a person for a lifetime to contest the elections. During the Martial Law regime of General Zia-ul-Haq, amendments were made to the 1973 Constitution, including some that were meant to supplement the Islamic content of the Constitution. In the present context, the President’s Order No.14 of 1985 introduced, inter alia, new qualifications and disqualifications for membership to Parliament. According to the same order, Article 62(1)f was introduced, which categorically stated that in order to become a parliamentarian, a person has to be sagacious, righteous and non-profligate and honest.
The elected Parliament affirmed the amendments made under this order through the 8th constitutional amendment. Furthermore, from time to time, constitutional amendments were made in the year 2002 in the form of Legal Framework Order during the Pervez Musharraf’s regime and then subsequently in 2010,the 18th amendment was introduced and passed by the Parliament to reform the constitutional scheme. Despite the changes made in the constitution, Article 62(1)(f) remained intact. So it was presumed that the parliament never intended to delete this provision as the wisdom envisaged by the parliament was that an elected public office holder is intended to conform to the criteria of Article 62(1)(f) of the constitution to contest the elections. The qualities of sagacity, righteousness, honesty and trustworthiness laid down in Article 62(1)(f) of the Constitution as qualifications for membership to the elected Houses are actually derived from the Sunnah of the Holy Prophet Muhammad (PBUH). These qualities are since acknowledged in political thought as attributes of a public leader. The substantive content of Article 62(1)(f) finds support from the Preamble of the Constitution, emphasising Islamic values in society and from the oath of parliamentary office, which enjoins honesty and faithfulness to public interest and the law.
Since Article 62(1)(f) is a part of the Constitution, the superior courts are bound to apply it
Therefore, when the article 62(1)(f) of the constitution is in existence and finds its genesis from the preamble as well as Article 2A (Objective Resolution)of the constitution, superior courts are bound to apply it, as redundancy cannot be attributed to the legislature. After the announcement of the verdict, the ruling party severely criticised the verdict by stating that it was deemed to oust Nawaz Sharif from the politics and bring an ignominious end to his political rule. Firstly, the decision of the supreme court regarding disqualification under Article 62(1)(f) is not person specific. It applies to every person across the board who has been disqualified under Article 62(1)f. Henceforth, it applies equally to Nawaz Sharif as well Jahangir Khan Tareen, as both the politicians are now disqualified for a lifetime. Secondly, in 2013, a similar verdict was given by the supreme court. It was held in Abdul Ghafoor Lehri vs Returning Officer, PB-29(2013 SCMR 1271) that a false declaration made in the nomination papers by a candidate about his academic qualification led to a permanent embargo on the candidature for election. The same view was consistently followed by another reported judgement, Allah Dino Khan Bhayo vs Election Commission of Pakistan 2013scmr 1655,in which the following observations were made:
“11. … The provisions of the said Articles when examined in the light of the judgment of this Court referred to and reproduced herein above reveal that certain disqualifications are removed by the afflux of time, e.g. disqualification on account of conviction or removal from service. Similarly, the qualifications can be acquired by some future act of the candidate, e.g. by acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution. However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same. Consequently, if a person, is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever.”
The recent verdict given by the supreme court is not unusual. Instead, it has adopted a consistent view in consonance with the past verdicts regarding the interpretation of Article 62(1)(f) of the constitution. The criticism by the ruling party is not only unreasonable but also shows that it nurtures the thinking of personality-cult politics. One specific criticism faced by the honourable supreme court is that it has undermined the sanctity of vote through its verdicts. In reality, accountability and the rule of law are the cornerstones of a democratic society. If the PMLN had heeded attention towards the sanctity of the vote, it would have taken action against its MPs, who were involved in horse-trading during the Senate elections. Kudos to Imran Khan for taking a bold and principled stand and issuing show cause notices to party MPs of Khyber Pakhtunkhwa, who sold their votes in lieu of money. In the recent Senate elections, the worst form of horse-trading was witnessed, and only PTI has taken a principled stand, which has vowed to send a reference to NAB against its MPs involved.
The recent supreme court verdict has amply demonstrated that we are slowly moving towards the rule of law and there is a silent revolution we are witnessing right now. However, the honourable supreme court should also delineate the criteria of exercising its suo moto jurisdiction under Article 184(3) of the constitution. Secondly, it must also formulate criteria regarding the appointment of judges in the superior courts because at present the bar councils in Pakistan are also raising hue and cry since the honourable judges in high courts are hesitant in deciding the writ of quo warrantos as well as service matters litigation involving promotion of civil servants. At present, there are 13 vacant seats available in the Lahore High Court, and the attention of the honourable chief justice of Pakistan must be drawn that only professional and competent lawyers or judges from the subordinate judiciary are appointed as judges of superior courts.
The writer is a human rights activist, constitutional lawyer and a teacher;Email:[email protected]
Published in Daily Times, April 28th 2018.