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January 27, 2018
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Disqualification issue: Fate of Nawaz, Tareen hangs in the balance

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January 27, 2018

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ISLAMABAD: Ousted prime minister Nawaz Sharif will suffer or benefit from the impending judgment of the Supreme Court (SC) on determination of duration of disqualification under article 62(1)(f) of the Constitution although he doesn’t figure among the appellants.

Similarly, senior Pakistan Tehreek-e-Insaf (PTI) leader Jehangir Tareen will also either be on the receiving end or will gain because of this ruling regardless of the fact that he has not approached the top court on the question.

Both Nawaz Sharif and Tareen have been disqualified by the top court under Article 62(1)(f) for not declaring their assets in their nomination papers. At no stage during proceedings on his review petition, had the former prime minister’s lawyer, Khawaja Haris, sought determination of the period – lifelong or time-specific - of disqualification. He had unwittingly made a cursory mention of it but had not pressed it as the ex-premier wanted to leave the issue open to agitate it subsequently at an appropriate time.

Tareen has so far not found any opportunity to raise the question before the apex court because his review petition against his disqualification is yet to be heard and decided by it. Although neither Nawaz Sharif nor Tareen is party to these proceedings, they will keenly wait for their outcome. They are unexpected to formally join the hearing.

The Pakistan Muslim League-Nawaz (PML-N) and PTI which differ on everything under the sun agree to cherish the declaration of the disqualification under Article 62(1)(f) one-time so that their senior leaders could stand in the next polls. Because of the punishment imposed on Tareen by the Supreme Court, the PTI was unable to celebrate the clean chit that Imran Khan earned.

Nawaz Sharif was disqualified for not declaring the receivable salary from his son’s Dubai-based company while Tareen was penalised for concealing his offshore company. Article 62(1)(f) is silent on the timespan of bar to contest a public office. Some lawyers believe that when the provision doesn’t spell out the timeframe of ineligibility, it is assumed that it is lifelong. But others dispute it, saying that how perpetual ouster can be presumed unless it has been expressly noted in the Constitution.

An authoritative interpretation of Article 62(1)(f) by a five-member bench headed by Chief Justice Mian Saqib Nisar that open hearing on a slew of appeals, 17, clubbed together, on Jan 30 will decide the length of ineligibility once and for all.

It is widely expected that a ruling will be available before the upcoming general elections so that all these former lawmakers know whether or not they will be in a position to vie for federal or provincial seats.

Article 62(1)(f) says a person shall not be qualified to be elected or chosen as an MP unless he is sagacious, righteous and non-profligate, and honest and Ameen.

The bench includes Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan, who were part of the Panama panel, and the chief justice and Justice Umar Ata Bandial, who were included in the group that had exonerated Imran Khan and disqualified Tareen. Justice Sajjad Ali Shah had not figured in these two benches.

A panel headed by the outgoing chief justice Anwar Zaheer Jamali had conducted a couple of hearings on this issue but could not decide it due to his retirement. However, he had wondered how anyone could be disqualified from participating in the elections forever on the basis of Articles 62 and 63, saying people could reform themselves to be qualified under these provisions at some point of time.

The apex court had issued varying judgments on the disqualification of MPs on the same grounds. The case law had not provided for permanent disqualification while a verdict of ex-chief justice Iftikhar Muhammad Chaudhry, which is in force, held that disqualification under this article is for life.

The Constitution defines the periods of ineligibility on different counts. A person convicted in a criminal case is barred for five years after imprisonment; one sentenced under the National Accountability Ordinance 1999 is disqualified for 10 years after his release; and a person is ousted for five years when penalised for contempt of court.

As per the established principle worldwide, when the Constitution is quiet or contains a grey area on a certain point, superior courts interpret the provision concerned to remove the ambiguity. Courts generally also attempt to look into the minds of the lawmakers who had framed the particular provision. At times, the parliamentary proceedings are also called to ascertain this.

As per the PML-N’s tentative plan, Nawaz Sharif was going to file his nomination papers in the next elections. In case of their rejection by the returning officer on the basis of his Supreme Court-sanctioned disqualification, he was going to challenge the rejection in the tribunal and then in the high court. Had he not got relief from these judicial tiers, only then he would have gone to the Supreme Court. He did not want to directly go to the highest forum.

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