Legal minds differ on disqualification issue

ISLAMABAD: Meaty points were raised during the lawyers’ arguments on the issue of determination of the time period of disqualification under Article 62(1)(f) in the Supreme Court.

The most important question was whether the ineligibility imposed on a lawmaker under Article 62(1)(f) was a mere declaration, or a sentence or punishment. An apparent consensus was that it was just a declaration san repercussions.

The second pertinent point was that disqualification of a person to contest elections was an infringement of his fundamental rights, as enshrined by the Constitution, to compete for polls. The third point was that Article 62(1)(f) was confusing, and this confusion needs to be done away with by the court for good. The provision is silent on the length of disqualification, which, however, is interpreted by some legal minds as lifelong while others dispute this view.

The fourth assertion was that no trial can be conducted on a writ of quo warranto, which is a legal proceeding during which an individual’s right to hold an office or government privilege is challenged.

The fifth foremost point was that Article 62 only talks about qualifications for membership of Parliament but is silent on the consequences of ineligibility whereas Article 63 lists disqualifications for membership of Parliament and also provides for their effects – punishment or sentence. Thus, the two provisions overlap each other, pointing to a serious lacunae that had not attracted the attention of lawmakers to remove it.

“To contest elections is a fundamental right; articles 62 and 63 should be read in a manner wherein fundamental rights of any person should not be infringed,” Munir A Malik, who has been appointed by the court as amicus curiae, raised the major point. "We will have to see for how long curbs to contest elections apply on disqualified individuals."

Even Justice Sheikh Azmat Saeed pinpointed that when a person is disqualified under Article 62, it is a declaration by the court, not a sentence. “What will be the effect of Article 62(1)(f) in such a case?,” he asked.

Barrister Wasim Sajjad stressed that a major difference between articles 62 and 63 is that the former spells out only declaration whereas the latter specifies sentence. For example, clause (h) of Article 63 says that a person shall be disqualified from being elected or chosen as, and from being, a member of Parliament if he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release.

Outside the Supreme Court, prominent lawyer and Pakistan People’s Party (PPP) leader Senator Aitzaz Ahsan mentioned a few vital points when he said only Parliament has the authority to amend a lifetime disqualification verdict of the Supreme Court. “The judgment of a fourteen-member bench of the top court in the Asfandyar Wali case can serve as a legal reference in this regard. The court had advised Parliament to reduce the amount of time a person is liable to serve in lifetime disqualification from 21 years to 10 years in this case. Parliament had acted on the suggestion and reduced the number of years to ten. The court can advise Parliament again if it feels the need.”

However, even if the top court fixes the timespan of disqualification now that it is now going to do or and leaves the question open, Parliament still has the powers to undo such a ruling as it is empowered to overturn any judgment through legislation.

While comprehensively reviewing the Constitution at the time of formulating the 18th Amendment, the parliamentary committee had not paid heed to the apparent defect in and overlapping of Articles 62 and 63. Specifically, the body had not decided about the consequences of disqualification of a legislator under Article 62.

To get rid of the confusion left in these provisions and conclusively determine the duration of disqualification, the Supreme Court has merged several cases. Deposed prime minister Nawaz Sharif has also now joined the proceedings. Pakistan Tehreek-e-Insaf (PTI) leader Jehangir Tareen quickly associated himself with the hearings on the very first day. The former premier is going to hire a constitutional lawyer to represent him, but he himself is unlikely to attend any hearing of the apex court.