SCBA challenges lifetime disqualification of MPs in SC

January 28, 2022

President SCBA filed a constitutional petition in the Supreme Court under Article184 (3) of the Constitution

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Former prime minister Nawaz Sharif (L) and PTI leader Jahangir Tareen (R) have been disqualified for lifetime by the courts. File photo

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Thursday challenged in the Supreme Court the lifetime disqualification of parliamentarians, praying to declare that the declaration by a court of law under Article 62(1)(f) only applies to the election under question and does not entail a perpetual/lifetime bar.

President Supreme Court Bar Association (SCBA) Ahsen Bhoon filed a constitutional petition in the Supreme Court under Article184 (3) of the Constitution, making the Federation of Pakistan through the secretary Ministry of Law and Justice as respondent. He prayed to the apex court to declare that the proceedings/declarations under articles 184(3) or 199 of the Constitution do not constitute declarations by a court of law as per the principles expounded by this court.

In his petition, Ahsen Bhoon submitted that it was necessary to reconcile the jurisprudence of this court to consider whether the denial of the right to an appeal — that results in a lifetime disqualification — is violative of the fundamental rights of such persons, as well as their potential voters. He recalled that the apex court has identified certain due process protections afforded to a candidate/member of Parliament for a court/tribunal to make a declaration in terms of Article 62(1)(f) of the Constitution.

He contended that in Samiullah Baloch’s case, the Supreme Court upheld the principle that the disqualification is perpetual, as held in the Abdul Ghaffor Lehri case, because adequate remedies are available to anyone against whom such declaration is given.

“However, what has not been addressed is that in the absence of a right of appeal against a ruling given by this court under Article 184(3), no adequate remedy is available,” Ahsen Bhoon contended in his petition.

He submitted that the remedy of review under Article 188, against a ruling under Article 184(3), is neither adequate nor, by any stretch of imagination, can supplant, or be a substitute for, a right of appeal. The petitioner questioned can a lifetime bar be read into Article 62(1)(f) of the Constitution when the plain language of the aforesaid provision does not stipulate so?

Has this court, in Sami Ullah Baloch v/s Abdul Karim Nousherwani (PLD 2018 SC 405), correctly appreciated the Islamic principles of tau’ba (repentance) and maghfirat (forgiveness) while holding that they shall not be applicable in sofar as Article 62(1)(f) is concerned, Ahsen Bhoon further questioned. He further questioned as to whether the proceedings under Article 184(3) or Article 199 adequately meet the requirements of Article 10A for the purpose of a declaration under Article 62(1)(f)?

The petitioner submitted that an equally plausible reading of Article 62(1)(f) could be that not meeting any of the conditions/qualifications stipulated in this article would only render the person ineligible for the time being, or for a particular election or office under challenge. It can also be argued that where disqualification is time bound, the Constitution states so i.e. in Article 63.

“It is a settled principle of interpretation that where the import of some enactment is inconclusive or ambiguous, the court may properly lean in favour of an interpretation that safeguards the rights of an individual,” the petitioner said, adding that where no limitation period is specified by the Constitution itself, language cannot be read into it.

He further submitted that there is no mention of disqualification being permanent or indefinite under Article 62(1)(f), hence, the same cannot be presumed. The legislative intent behind insertion of “there being no declaration to the contrary by a court of law” in Article 62(1)(f), vide the Constitution (Eighteenth Amendment) Act, 2010, appears to be to build a safeguard against abuse of this provision”, Ahsen Bhoon submitted. Prior to the insertion of the aforesaid language, the petitioner contended that the Returning Officers, in summary proceedings, were applying this provision to knock the candidates out of the election process, on the objections of the rival candidates.

“Had the Parliament intended to give perpetuity to a declaration under Article 62(1)(f), it would have stated so by inserting specific language to this effect,” the petitioner said, adding that the apex court has incorrectly read lifetime disqualification into Article 62(1)(f) in Abdul Ghafoor Lehri, Sami Ullah Baloch and all other judgments which followed the aforesaid rulings.

The petitioner submitted that in Sami Ullah Baloch case, it was also briefly argued that the Islamic concepts of Maghfirat and Taubah highlight the value of repentance and forgiveness affording a person an opportunity from being absolved of the stain of a declaration under Article 62(1)(f).

However, this court held that because higher standards were expected from persons aspiring to be members of Parliament, the aforesaid principles would not apply, the petitioner stated.

“This court further held that adequate opportunity is, even otherwise, available to such persons to seek forgiveness, on account of the various stages involved in such declaration’s attainment of finality,” Bhoon submitted, adding that a question that follows is determining the intervening period, or the stage, till which such forgiveness may be sought. He contended that proceeding from the previous analysis, this stage would be following a declaration by a competent court of law, and at different stages of the trial, appeal etc.

He further submitted that the judgment in Sami Ullah Baloch does not address the aforesaid. Resultantly, a person against whom a declaration is given under Article 62(1)(f) is left with no opportunity to absolve himself by way of remorse, before the declaration is given finality by this court at the appeal stage. “A disqualification under Article 62(1)(f) by the Supreme Court, under Article 184(3), takes away the opportunity of repentance,” Ahsen Bhoon stated in his petition.

He recalled that in In Imran Khan Niazi v.s Mian Muhammad Nawaz Sharif’s case (PLD 2017 SC 265), Justice Ejaz Afzal Khan, writing for the majority, pronounced that — “The expression ‘court of law’ has not been defined in Article 62 or any other provision of the Constitution but it essentially means a court of plenary jurisdiction, which has the power to record evidence and give a declaration on the basis of the evidence so recorded. Such a court would include a court exercising original, appellate or revisional jurisdiction in civil and criminal cases.”

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