ISLAMABAD: The Supreme Court on Monday by a majority of 6 to 1 overruling the SC’s judgment in Sami Ullah Baloch, declared that lifelong disqualification of lawmakers under Article 62(1)(b) in view of the judgment amounts to reading into the Constitution.

It said: “Until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution 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.”

Former prime minister Mian Nawaz Sharif and Istehkam-e-Pakistan Party chief Jahangir Tareen stand to benefit from the court’s verdict.

SC reserves verdict in lifetime disqualification case

A seven-judge bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali, on January 05, 2024, after hearing the arguments of petitioners, AGP Mansoor Usman Awan and the advocates general of all the provinces had reserved the judgment.

Justice Yahya Afridi disagreed with the majority. He wrote; “… the extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) of the Constitution, is 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.”

During the proceeding of the case, which the Court heard for three days, except Pakistan Tehreek-e-Insaf (PTI) all the lawyers, representing the petitioners and respondents, had supported AGP Mansoor Usman’s stance that there should be no permanent disqualification. Shoaib Shaheen, appeared on behalf of PTI, had demanded that there should be lifelong ban. He had contended that the Parliament through amendments in Section 232 of the Election Act has tried to nullify the constitutional provision Article 62(1)(f).

The majority order declared: “Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan (“Constitution”) is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.

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

“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.

“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.

“Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 promulgated on 26 June 2023, prescribes a period of 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 has 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.”

Copyright Business Recorder, 2024