Both Sharif, Tareen have become ineligible to ever hold public office
In a historical verdict, the Supreme Court (SC) on Friday ruled that disqualification under Article 62(1)(f) of the Constitution is for life.
Article 62(1)(f), which sets the precondition for a member of parliament to be “sadiqand ameen” (honest and righteous), is the same provision under which Nawaz Sharif was disqualified by a five-judge SC bench headed by Justice Asif Saeed Khosa on July 28, 2017, in the Panama Papers case. Likewise, Pakistan Tehreek-e-Insaf (PTI) leader Jahangir Tareen was disqualified on Dec 15 last year by a separate bench of the apex court under the same provision.
Following the verdict, both Sharif and Tareen have become ineligible to ever hold public office.
Chief Justice of Pakistan (CJP) Mian Saqib Nisar, who was heading the five-member bench, remarked before the verdict was announced that the public deserves “leaders of good character”.
Other members of the bench were Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Sajjad Ali Shah.
Justice Umar Ata Bandiyal read out the verdict, which states, “the absence of a time limit for the ineligibility of a candidate for election in Article 62(1)(f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time, the reasons recorded in our judgment reinforce that conclusion.”
The written order issued by the bench states that Articles 63(1)(a) and 63(1)(b) of the Constitution allow disqualifications on account of a judicial declaration.
The verdict stated that the disqualification of any member of parliament or a public servant under Article 62 (1)(f) in the future will be permanent. Such a person cannot contest elections or become a member of parliament.
Moreover, the judges unanimously ruled that the Constitution states that those not ‘honest’ and ‘truthful’ as per law are banned from Parliament for life.
‘IRONIC THAT LAWMAKERS NEVER MADE AMENDMENTS TO ARTICLE 62 (1)(f)’:
Giving additional notes, Justice Azmat Saeed Sheikh said that the court is empowered to interpret the Constitution but not to amend it.
“It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto, therefore, we (SC) cannot read into Article 62(1)(f) of the Constitution, a period of such
lack of qualification, which is not mentioned therein,” he said.
Justice Sheikh said that some of the counsels expressed concern over lifetime disqualification and worry that this may be disproportionate and a little harsh.
“Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. We, as stated above, can only interpret the Constitution not amend or change it,” said Justice Sheikh. “This aspect of the matter is rather ironic as several persons before us were or had been the Members of Majlis-e-Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way.”
It is pertinent to mention here that the CJP, at an earlier hearing, had also pointed out that all political parties decided to keep Article 62(1)(f) intact when the 18th Amendment was made to the Constitution.
Justice Sheikh added that none of the learned counsels, who appeared before court confronted the elephant in the room; the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a member is an effect of the declaration by a court of law.
However, Justice Sheikh added that Attorney General of Pakistan (AGP) Syed Ashtar Ausaf Ali addressed the court and in no uncertain terms stated that once declaration has been made by a Court of Law that a person is not sagacious or righteous or non-profligate or honest and ameen, such a person is not qualified to be a Member of Parliament.
This lack of qualification is the effect of the aforesaid declaration, which is the cause and as long as the declaration by the court holds the field, the person in respect of whom such declaration has been made will continue to be deprived of the qualifications to be a Member of Parliament.
The stand taken by the learned attorney general for Pakistan is not only fair but is also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution. Incidentally, this Court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity.
The five-member bench further observed that such a restriction is fair in a democratic setup.
At the last hearing, Ashtar Ausaf had told the bench that it was not the function of courts to say that the disqualification under Article 62(1)(f) of the Constitution was for life or to give any timeline. The question should be best left for parliament to decide, he had argued.
The AG had also emphasised that the provision did not determine the length of disqualification, adding that the court would have to look into the matter on a case-to-case basis.
Tareen had appeared for the court’s proceedings, however, Nawaz Sharif had told the top court that he will not be party in the proceedings of a case.
The former premier had said that one of “far-reaching consequences relating to the body politic of the country” has been taken up by the court on the “motion of many other aggrieved parties”.
He had added that his participation in the case may bring “prejudice” to the proceedings.
Nawaz had said that if he had decided to participate in the proceedings, he would have asked Justice Saeed and Justice Ahsan to recuse themselves from the case as they had served on the bench that disqualified him in the Panama Papers case.
It is pertinent to mention that four of the judges hearing the case, excluding Justice Shah, have given either observations or judgements in the Panama Papers case.
The SC had also issued a public notice asking anyone who will potentially be affected in the case to approach the apex court to be heard otherwise ex-parte proceedings would take place.
On February 14, the apex court had reserved its decision in the case while hearing several petitions seeking to determine the time-period a lawmaker would remain disqualified for after being de-seated in violation of Article 62(1)(f) and other election laws.
During the hearing, the court had observed that the disqualification will continue for as long as the declaration [signed by electoral candidates declaring them honest] holds, adding that the 18th Amendment, passed in 2010, did not determine a time period for disqualification.
At an earlier hearing on February 8, the chief justice had also acknowledged the ambiguity of Article 62(1)(f) of the Constitution.