Justice Afridi issues dissenting note on MPs’ lifetime disqualification

ISLAMABAD: Justice Yahya Afridi, a judge of the Supreme Court, has held that the period of disqualification under Article 62(1)(f) of the Constitution, as determined by the apex court in the Samiullah Baloch case (supra), would prevail over the five-year disqualification period for Article 62(1)(f), as provided under Section 232(2) of the Elections Act.

In his 19-page dissenting note on the matter of lifetime disqualification of lawmakers, Justice Afridi held that any attempt to impose a time limit to the effect of Article 62(1)(f), such as stipulating a maximum period of five years, would require a constitutional amendment, rather than introducing it through ordinary legislation,” Justice Afridi held.

He held that the conclusion drawn in the judgment of the Samiullah Baloch case (supra) was legally correct, as it was in consonance with the settled principles already interpreted by the SC in its prior precedents and clear parliamentary intent, and thus, need not be overruled; and that the lack of qualification/disqualification envisaged under Article 62(1)(f) of the Constitution only renders a person disabled to be chosen or to remain a member of the Parliament, till the adverse declaration remains in the field, and is thus, not permanent.

On January 8, a seven-member bench of the apex court, headed by Chief Justice Qazi Faez Isa, had abolished lifetime disqualification of parliamentarians, paving the way for former prime minister and Pakistan Muslim League supremo Nawaz Sharif and Istehkam-i-Pakistan chief Jehangir Tarin to contest the 2024 elections.

The court had announced the verdict by a majority 6-1, Justice Yahya Afridi had dissented the judgment by holding that the conclusion so drawn by the court in Samiullah Baloch versus Abdul Karim Nousherwani (PLD 2018 SC 405) was legally valid, hence affirmed.

On December 11, 2023, CJP Qazi Faez Isa, while heading a three-member bench, hearing a matter related to disqualification of a former MP, took notice of an appeal, made by Sardar Mir Badshah Khan Qaisarani, who had filed nomination papers from constituency NA-189 and PP-240 Taunsa (Dera Ghazi Khan) in 2008 and 2018 elections, respectively. He was disqualified for producing a fake graduation degree. His appeal was still pending before the Lahore High Court. The bench had also heard appeals of Sardar Iman Qaisrani as well as Mumtaz Ahmed. The bench had intervened to determine as to whether the disqualification of a lawmaker should be for lifetime or five years, stipulated in the Elections Act.

In 2018, the Supreme Court five-member bench, headed by former chief justice Mian Saqib Nisar, had held in Samiullah Baloch case that the disqualification of MPs under Article 62(1)(f) of the Constitution would supposed to be for lifetime.

Article 62(1(f) that sets the precondition for a lawmaker to be a Sadiq and Ameen (honest and righteous), is the same provision whereby former PM Nawaz Sharif was disqualified in Panama Papers case.

“Let us see whether the legislature has validly exercised its authority, to render the judgment of this court in the Samiullah Baloch case (supra) ineffective by removing its basis through a retrospective change in the law, within the constitutional limitations. Article 62(1)(f) of the Constitution notably does not specify a time period for disqualification. In contrast, the amended Section 232(2) of the Elections Act prescribes a time period for a disqualification of the nature of Article 62(1)(f),” Justice Afridi noted.

The judge held that the absence of a specified period of time for disqualification envisaged in Article 62(1)(f) of the Constitution, indicates a deliberate choice by the framers of the Constitution not to define the specific duration for disqualification under this provision.

“Any attempt to impose a time limit to the effect of Article 62(1)(f), such as stipulating a maximum period of five years, would require a constitutional amendment, rather than introducing it through ordinary legislation,” Justice Afridi held.

The judge further noted that it is imperative to recognise that a provision introduced through ordinary legislation could not supersede the clear mandate provided in the Constitution.

“Therefore, the amended Section 232(2) of the Elections Act, by imposing a duration for disqualification of the nature of Article 62(1)(f), contradicts the said constitutional provision,” Justice Yahya held.

Further, the judge noted that Samiullah Baloch case (supra) interpreted the purport and effect of Article 62(1)(f) of the Constitution, adding that it was held therein that the effect of the disability under Article 62(1)(f) would last as long as the effect of the declaration required under Article 62(1)(f) continued.

Justice Afridi held that the conclusion reached in the Samiullah Baloch case (supra) is based on Article 62(1)(f) of the Constitution and in order to remove the basis of the judgment, rendered in the Samiullah Baloch case (supra), a change in law through simple legislation was not enough, rather an amendment to the Constitution was required.

Justice Afridi further held that an ordinary legislation could not nullify a judgment rendered by a constitutional court, while interpreting a provision of the Constitution.

“I would, in these circumstances, declare that: the conclusion drawn in the judgment of the Samiullah Baloch case (supra) is legally correct, as it is in consonance with the settled principles, already interpreted by this Court in its prior precedents and clear parliamentary intent, and thus, need not be overruled,” Justice Afridi concluded.

The judge further held that the lack of qualification/disqualification, envisaged under Article 62(1)(f) of the Constitution, only renders a person disabled to be chosen or to remain a member of the Parliament, till the adverse declaration remains in the field, and is thus, not permanent.