With the upcoming general elections exactly a month away, the Supreme Court of Pakistan on Monday set aside its landmark ruling that provisioned lifetime disqualification of parliamentarians.
The 6-1 majority verdict, with Justice Yahya Afridi dissenting, stressed that Article 62 (1)(f) of the Constitution is not a self-executory provision as it does not by itself specify any period for disqualification.
The development comes after a seven-member larger bench — headed by CJP 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 — conducted the hearings of the case on the lifetime disqualification precedent established in the 2018 Samiullah Baloch case.
The development has effectively paved the way for Pakistan Muslim League-Nawaz (PML-N) supremo Nawaz Sharif and Istehkam-e-Pakistan Party (IPP) chief Jahangir Tareen to contest in the polls as the duo were disqualified for life by the SC in July and December 2017, respectively.
— Pildat President Ahmed Bilal Mehboob
This is the right time, as several returning officers (ROs) have held their decisions regarding candidates’ eligibility as the case was being heard by the apex court.
The SC’s ruling will provide in much-needed clarity for ROs and Appellate Tribunals.
The top court’s earlier verdict, on the issue of lifetime disqualification, was against the principle of natural justice. How can you decide on the extent of an individual’s sentence if the Constitution does not explicitly provision it; [if you do so, then] it amounts to re-writing of the Constitution.
Setting aside the court’s earlier verdict is in accordance with the principles of natural justice, regardless of who benefits from it.
The court’s today’s interpretation of the Constitution is limited to the specific constitutional provision.
The court’s ruling has eliminated any ambiguity that existed regarding the tenure of disqualification, as the law passed by the parliament has prevailed which provisions the disqualification to be limited to five years.
This verdict is favourable for transparency and the supremacy of the parliament.
— Barrister Asad Rahim Khan
Yet again, the Supreme Court has unsettled its own settled law in favour of sticky-taping a person-specific, subconstitutional bill on top of the Constitution.
Judges being brought in to disqualify lawmakers for being immoral was not a Zia-era fiat; they were included in Article 62(1)(f) for the first time by our own elected democrats through the Eighteenth Amendment.
A lawmaker is, for that reason, ineligible as long as there is a court declaration to the contrary (as held absolutely correctly by Justice Yahya Afridi in his dissent).
For the previous regime to have tried to get around that same amendment by distorting the Election Act of 2017 was plainly wrong.
But this seems to be in the habit of legalising the bad laws of minority regimes each time they circumvent the will of the people, the dignity of parliament, and the need for a constitutional amendment via a two-thirds majority.
Between passing the bogus practice and procedure law and now upending electoral disqualification, the next government should be confident in never having to need to go to the public or marshal the numbers to amend the Constitution, given that this court is so willing to accommodate whichever fly-by-night ordinary legislation is passed to disrupt the existing constitutional scheme.
Maryam Nawaz, Supreme Court correspondent
Supreme Court, while overruling its own judgment in the present context, seems fair, but for the future, it wouldn't be a good precedent as the apex court nullified lifetime disqualification cases by shutting down its doors for appeal against the judgment.
The reason I say this is that the verdict regarding lifetime disqualification came under Article 185 in the appeal against the high court order, while the petition of SC Bar Association under Article 184(3) on the same plea was rejected as withdrawn.
If the case had been decided under Article 184(3), an appeal could have been laid before a new and larger bench of the Supreme Court.
The rift between SC judges is too clear as there is a possibility that today's judgment can be overruled by a bigger bench in the future.
The incumbent CJP has ended the possibility of reopening today's case. It just can be reviewed, but the scope is limited.
— Barrister Muhammad Ahmad Pansota
The judgment was passed in consequence of various petitions which were filed before the court and in all of these petitions, lifetime disqualifications under Article 62(1)(f) were challenged by several people.
The basis of the court’s decision is that Article 62(1)(f) is a self-executory provision and it doesn’t specify a court [...] the procedure and process of making a declaration under this provision are not provided as such.
The judgment is quite welcoming. This was the need of the hour as parliamentarians must not be disqualified for life, it has to have a tenure or term and must be restricted.
Now that the Elections Act has prescribed the time frame [for the disqualification], it has to be followed in letter and spirit.
Prescribing a lifetime disqualification for parliamentarians is definitely not what the Constitution of Pakistan hinges on. The Constitution provisions that the people of Pakistan have the right to choose their representatives.
This democratic principle on which [the system] rests would be negated if lifetime disqualification is prescribed.
— Senior analyst Mazhar Abbas
The 6-1 decision of the SC will have far-reaching political consequences as it came at a time when politics is too polarised and spikt judiciary.
Irrespective of the verdict, this clause was added to the Constitution by the dictator who had abrogated the very Constitution.
The lifetime disqualification of politicians from the word go was unjustified and based on injustice.
However, civilian rulers like former prime minister Nawaz should also be blamed for retaining such clauses when they had the opportunity to undo them in 1997 and had a two-thirds majority.
— Lawyer Reza Ali
The apex court has applied a textualist interpretation of the Constitution. Essentially the judges have stated that because there is on court of law that has been specified that can hold whether a particular parliamentarian can be disqualified for the purposes of dishonesty or bad conduct.
Ultimately it's a good decision as the ball is now back in the parliament’s court for essentially specifying as to what is the scope of Article 62 (1)(f), what it entails and what are its limitations.
Courts have refrained from providing interpretations when none of them are apparently available on the records.
— Advocate Sheikh Saqib Ahmed
The Constitution came into effect 26 years after the Independence and following the separation of East Pakistan. Pakistan officially adopted the name Islamic Republic and incorporated the Objectives Resolution of 1949, rooted in the Quran and Sunnah, as a substantive part of the 1973 Constitution under Article 2A.
Despite this, the operative parts of the 1973 Constitution have not consistently aligned with the preamble, leading to an ongoing identity crisis regarding whether Pakistan is an Islamic state or adhering to Western democracy.
The Supreme Court, in interpreting Article 62(1)(f) of the Constitution, overruled its previous decision. The court deemed permanent disqualification as inconsistent with fundamental rights, especially Articles 10-A and 17, encompassing the right to a fair trial and the right to contest elections, respectively.
Undoubtedly, Article 62(1)(f) of the Constitution is not self-executory. It lacks explicit specifications for the court responsible for making the mentioned declaration and fails to outline any procedure or duration for the disqualification resulting from such a declaration.
However, Article 62, as a whole, lacks a clear mechanism or implementation guidelines, often appearing ceremonial and vague, without specifying how it should operate. Furthermore, by virtue of Section 232(2) of the Elections Act, 2017, the legislature has specified a five-year period for the disqualification resulting from any judgment, order, or decree of any court under Article 62(1)(f). Additionally, such declarations must be according to Article 10-A.
This decision has breathed new life into key political leaders contesting elections, drawing both praise and criticism for the apex court.
In my opinion, this matter should have been adjudicated by the full court to avoid the political victimisation of the Supreme Court.
It is relevant to quote Thomas Jefferson: “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any forms they please.”
— Lawyer Salaar Khan
Criticism of Article 62(1)(f) has been so widespread that even those who have wielded it count as some of its critics. Such was the case of former CJP Khosa, who later disqualified Nawaz under it.
So too was the case of former CJP Bandial, who first held that disqualifications under it applied for life, and later called those the same thing ‘draconian’.
Today’s order cuts at both of those cases. To the extent of cases like “Panama”, the court has held that the Constitution doesn’t describe which court can issue a ‘declaration’ of such disqualification.
This, until now, has been taken for granted. The court goes on to hold that parliament ought to fill this vacuum through legislation that properly allows for the provision’s execution.
To the extent of the second case, Samiullah Baloch — authored by former CJP Banial — the court has overruled its conclusion that disqualification under Article 62(1)(f) is “lifelong” (the sole dissenting judge, Justice Afridi, however, disagrees with this interpretation of the judgment).
This, too, the court holds, has been taken for granted, and was to be given effect by parliament through legislation.
That legislation, to the extent of duration, however, now exists: the recent amendments to the Elections Act. Of course, it is an ordinary law, not a constitutional amendment.
But the court seems to address this issue by treating the law as one that gives effect to the constitutional provision, rather than one that contradicts it.
It’s worth noting, however, that amidst all the parties, no one actually challenged the amendments to the Elections Act.
— Political commentator Majid Nizami
The Supreme Court’s order has two outcomes: The first is that the current politicians will get relief, including PML-N supremo Nawaz Sharif and IPP chief Jahangir Tareen.
The second thing is that there needed to be a timeframe for disqualification.
The confusion surrounding one’s disqualification period has ended and in the coming days, even PTI founder Imran Khan can take advantage of it.
That’s why, I believe, that politicians across the board will benefit from it as hopefully, political careers won’t end due to lifetime disqualifications.
— Political analyst Shahzeb Khanzada
Prior to the current judges, the courts had considered themselves the most superior institution in the country.
The previous judiciary failed to set a precedent after maligning the parliament by terming it a ‘compromised’ institution, besides calling everyone ‘God Father, Sicilian Mafia’ and declaring every decision of politicians wrong.
After the ‘establishment’, the judiciary has also contributed to destabilising the system in the country by passing unjust judgments against elected parliamentarians.
The situation was seen during the tenures of previous chief justices — including Iftikhar Ahmed Chaudhry, Mian Saqib Nisar, and Umar Ata Bandial. In some hearings, even their fellow judges tried to stop them from rewriting the Constitution.
During CJP Bandial’s tenure, like-minded benches comprising Justice Munib and Justice Ijazul Ahsan were formed which gave debatable verdicts. At last, they failed to set a precedent.
Today’s judiciary comprising honourable judges like Justice Isa, Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Athar Minallah, Justice Sardar Tariq Masood, and others, is acting otherwise.
Today’s judiciary is accepting the supremacy of the parliament and its legislation, besides respecting the collective will of the nation that elects lawmakers and exhibiting respectful behaviour instead of delivering insulting remarks.
— Senior journalist Adil Shahzeb
Today's decision is a reminder that history holds the power to rectify wrong decisions provisioning injustice.
Lifetime disqualifications, in blatant violation of the fundamental rights of representation and the right to vote, have been used as a tool for political victimisation in the past.
The question to be asked is why and how such decisions are made and those responsible should be held accountable.
Hopefully, the apex court will echo this exemplary verdict in the "judicial murder" case of former prime minister Zulfikar Ali Bhutto, which then will restore the public’s lost faith in the judiciary.
— Senior journalist Fahd Hussain
The Supreme Court has done well to abolish the lifetime disqualification clause. The process of undoing judicial mistakes seems to be well underway.
It is good for democracy that Nawaz and Tareen are back in the electoral arena.
— PML-N leader Marriyum Aurangzeb
The court's ruling is a step towards the restoration of constitutional sanity and the decision re-establishes the supremacy of the Constitution.
The provision of lifetime disqualification was an instrument created to persecute PML-N Quaid Nawaz Sharif and exclude him from Pakistani politics forever.
This should be a lesson for everyone that the true representatives of the people of Pakistan [...] cannot be eliminated from the political landscape.
History has vindicated Nawaz and restored his honour.
— PPP senior leader Qamar Zaman Kaira
It is a “good step” that the judiciary is moving to “correct its record”.
The parliament enacted a law that capped disqualification at a maximum of five years under Article 62(1)(f); however, it was challenged in court.
The tradition of challenging every decision of the parliament in courts should end.
There’s also a perception that the apex court is correcting the wrongs committed in the past and this step should be supported.
The latest decision has accepted parliament’s decision, so this is a good move. The Supreme Court has accepted the parliament and people’s supremacy.
— PTI leader Hammad Azhar
Those who face false cases and accusations are ineligible to contest in the polls. Whereas those who were convicted and were declared disqualified by the country’s top court have been declared eligible to run for the elections.
Disclaimer: The viewpoints expressed by experts, politicians, and lawyers in this story don't necessarily reflect Thenews.com.pk's editorial policy.
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