Disqualification under Article 62 should be maximum five years: amicus curiae

KARACHI: In her submission as amicus curiae in the lifetime disqualification case being heard by a seven-member bench of the Supreme Court, lawyer Reema Omer has said that the Supreme Court should revisit the judgment in the Sami Ullah Baloch case and declare it unsustainable; and that the disqualification period under Article 62(1)(f) should be a maximum of five years.

Reema Omer was appointed by the Supreme Court as amicus curiae in the case along with lawyers Faisal Siddiqui and Uzair Karamat Bhandari. Answering four questions in her eight-page submission to the court, Omer clarifies the first question -- whether Section 232 of the Elections Act, 2017 overrides the apex court’s interpretation of Article 62(1)(f) in the Sami Ullah Baloch case -- by saying that the Sami Ullah Baloch judgment “has an overriding effect on Section 232(2) of the Election Act for the purposes of the period of disqualification under Article 62(1)(f).”

Citing the amended Election Act, 2017 which says that the disqualification period “shall be for a period not exceeding five years from the declaration by the court of law in that regard...” Omer writes that the amendment comes “in conflict with the Supreme Court’s judgment in Sami Ullah Baloch, which interpreted disqualifications under Article 62(1)(f) to have permanent effect.”

According to Omer, a statute “can override a judgment in which a court interprets statutory legislation. A statute can also clarify constitutional provisions and resolve ambiguities where the provisions are silent. However, an ordinary law cannot override a clear and categorical judgment of the Supreme Court that interprets a constitutional provision. This can only be done through a constitutional amendment.”

On whether the Supreme Court can revisit its Sami Ullah Baloch judgment, Omer believes that the current seven-member bench is competent to do that. She reasons that although the Supreme Court “has held the doctrine of binding precedent promotes certainty and consistency in judicial decisions”, the court has also said that “a larger bench can revisit earlier judgments passed by a bench of a smaller numerical strength and take a contrary view.”

The third question Reema Omer looks at in her submission -- is the Sami Ullah Baloch judgment sustainable under the constitution? -- has a more detailed explanation. Her short answer: the Supreme Court “should declare the Sami Ullah Baloch judgment per incuriam and unsustainable under the constitution.”

Why is the Sami Ullah Baloch judgment not sustainable under the constitution? Omer gives four reasons: one, “it places unreasonable, arbitrary, and disproportionate restrictions on fundamental rights”; two, deviates from principles of constitutional interpretation; three, “conflates ethical guidelines with legal requirements; and four, creates inconsistency “between the effect of Article 62(1)(f) and certain provisions of Article 63 of the constitution.”

Quoting Article 17 of the constitution (“Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan”), Omer writes that over the years the apex court has interpreted Article 17(2) in a way that reads into the provision “a number of rights including the right to vote and the right to contest elections.” She adds that citizens’ right to contest elections is protected and any restrictions must be “reasonable” and can only be imposed by law “in the interest of the sovereignty or integrity of Pakistan.”

Continuing her submission, Omer says that the Supreme Court did not consider this provision nor did it consider “the effect of permanent disqualification on a citizen’s fundamental right to form a political party and contest elections, or examine whether a permanent disqualification was necessary and proportionate given the ends the court sought to achieve.”

According to Omer, Article 62(1)(f)’s provision of a person being “sagacious, righteous, non-profligate, honest and ameen” to be elected to parliament is “glaringly vague, subjective, and contrary to the doctrine of legality.” Calling the Supreme Court seeing Article 17(2) and Article 62(1)(f) of the constitution as having an “equal standing” an “erroneous interpretation”, Omer submits that “constitutional provisions that curtail or limit fundamental rights should be narrowly construed, particularly where they are framed in a vague and overbroad language.”

Referring to the Supreme Court’s interpretation of Article 62(1)(f) in Sami Ullah Baloch, Omer says that “not only did the court give restrictions in Article 62(1)(f) dominance over the rights protected by Article 17(2), it also created a contradiction between Article 62(1)(f) and Article 63(1) of the constitution.”

Reema Omer continues that, while Article 17(2) acknowledges that reasonable restrictions can be imposed by law in the interest of the “sovereignty or integrity of Pakistan’, Article 63(1)(g) only provides for a period of disqualification of five years after release for a person who has been convicted by a court of competent jurisdiction for ‘acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan’.”

In essence, says Omer, the court “did not adequately address why the period of disqualification is five years following release where the person has been convicted by a court for an offence involving ‘moral turpitude’, whereas a mere declaration by a court under Article 62(1)(f) regarding breach of moral standards leads to a permanent disqualification.”

Pointing to the contradiction in the matter, she writes that while on the one hand, the Supreme Court had contended that those who have “gone through incarceration for their crimes ‘have paid their dues’ to society”, it had taken an “entirely punitive view” for those who committed misconduct falling within Article 62(1)(f). Omer says that it is “unclear” why the court would consider “people convicted for criminal offences including violent or sexual offences more deserving of ‘relief’ and an opportunity to win the ‘hearts and minds’ of voters in their constituency after their release compared to people who committed a dishonest act.”

She adds that this way the Sami Ullah Baloch judgment ended up “leading to absurd outcomes” while also reading into Article 62(1)(f) “an arbitrary, excessive, and unreasonable curtailment of the fundamental rights under Article 17(2) of the constitution that conduct of a far graver nature did not entail.”

Omer also highlights that where the court had in Sami Ullah Baloch quoted two specific Qur’anic passages to demonstrate that honesty, trustworthiness etc were necessary attributes for those holding public office, “a complete reading of these passages shows this is a misreading that ignores their particular context” and that per one scholar, “no exegete of the Qur’an has interpreted these verses to mean that they are a condition for appointing a person to public office. They only set certain standards that people should aspire to attain.”

Eventually, says Omer, while the Supreme Court “established the importance of public office holders to be honest and persons of integrity” it did not “adequately address why failure to uphold these standards should result in a lifetime disqualification from contesting elections”.

Ultimately, answering the question of what the disqualification period should be under Article 62(1)(f), Reema Omer says that it should be “a maximum of five years”, explaining that “if the Sami Ullah Baloch judgment is no longer in force, a holistic reading of Article 62(1)(f) along with Section 232 of the Elections Act, 2017, and the disqualification periods provided by the constitution under Article 63(1)(h) and Article 63(1)(g) suggests the disqualification period under Article 62(1)(f) should be a maximum of five years.”