Supreme Court decision on duration of disqualification still awaited

Islamabad: Five weeks have passed since the Supreme Court reserved its judgment on the issue of determination of duration of disqualification under article 62 (1)(f) of the Constitution but there are no indications when it will be handed.

A five-member bench headed by the Chief Justice had reserved its decision on article 62(1)(f) on Feb 14. The ruling is being attached extraordinary importance and weight because it will decide for how long ousted Prime Minister Nawaz Sharif and a dozen others including Pakistan Tehreek-e-Insaf (PTI) leader Jehangir Tareen, hit by this constitutional provisions, will remain disqualified.

The decision on a slew of petitions will fix the length of ineligibility imposed under this article, which may be one-time, for life, two years, three years or five years. Or the court may leave it to the Parliament to fix the period of disqualification as was argued by some appellants during the proceedings.

However, just eleven days after announcing its short order, another three-member bench presided by Justice Saqib Nisar had released its detailed reasoning on the ouster of Nawaz Sharif as the Pakistan Muslim League-Nawaz (PML-N) president. As a result, the PML-N candidates in the Senate election had to contest as independents.

Article 62(1(f) is silent on the extent of ineligibility. Senior lawyers differ on it with some opining that it is for life while others pleading that it is one-time.

An apparent purpose of taking up these petitions by the top court was to conclusively decide the matter before the next general elections so that the parties concerned know whether they can stand in the polls or not.

Nawaz Sharif had chosen not to become party to these proceedings despite general public notices by the apex court so that he also presents his viewpoint on the issue. He had stated that he did not want to prejudice the case of other appellants. However, Tareen had quickly joined the hearings after his ineligibility.

The previous conflicting judgments given by the Supreme Court on the same question will become irrelevant after the instant bench will announce its ruling.

Some petitioners argued that the disqualification period should be five years. They have a vested interest in this argument – they have already lived five years as ineligible. However, such a determination will affect Nawaz Sharif and Tareen as they are the latest entries in this club. The deposed premier was disqualified on July 28 last while the PTI leader was declared ineligible in mid-December.

Those who stand for perennial ban under article 62(1(f) ignore the fact that even a convicted thief, dacoit, rapist, murderer, child abuser and traitor is qualified to become an MP after five years of completion of his jail sentence. But politicians likes Nawaz Sharif and Jehangir Tareen, punished for much lesser crime of mis-declaration, can’t be.

Article 63(1)(g) and (h) talks about the period of disqualification of convicted criminals saying that a person shall be ineligible from being elected or chosen as, and from being, an MP if he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the armed forces unless a period of five years has elapsed since his release.

Similarly, a person shall be disqualified from being elected or chosen as, and from being, an MP 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.

The offences that can fall into the category of moral turpitude - the expression used in Article 63(1)(h) - are many. In the US the offences covered by this category are also several and even include the crimes of murder, rape, child abuse, kidnapping etc.