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Disqualification decision: Game over for Nawaz

April 14, 2018

ISLAMABAD: The Supreme Court on Friday ruled that the parliamentarians disqualified under Article 62(1)(f) of the Constitution could not contest elections for life.

A five-member larger bench of the apex court, headed by Chief Justice of Pakistan (CJP) Mian Saqib Nisar, announced the much-awaited verdict on the duration of disqualification of legislators under Article 62(1) (f) of the Constitution.

Justice Sheikh Azmat Saeed, Justice Umer Ata Bandyal and Justice Ijazul Ahsen were the other members of the bench. Justice Sajjad Ali Shah was not present on the bench.

Authored by Justice Umer Ata Bandyal, the unanimous judgment checkmated former prime minister Muhammad Nawaz Sharif, PTI leader Jehangir Tareen and other disqualified lawmakers to chance their luck in the future politics.

The Article 62(1)f) of the Constitution reads as, “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-…he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”

On February 14, a five-member larger bench, headed by Chief Justice of Pakistan Mian Saqib Nisar, reserved the verdict while hearing several petitions to determine the time period a lawmaker would remain disqualified for after being de-seated in violation of Article 62(1)(f) and other election laws.

The Supreme Court disqualified former prime minister Muhammad Nawaz Sharif on July 28 last year for concealing in his nomination papers the receivable income from his son's company in the UAE.

The top court also disqualified Pakistan Tehreek-e-Insaf (PTI) leader Jahangir Tareen on December 15 last year for failing to declare an offshore company and a foreign property in his election nomination papers.

“We are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect,” says the judgment. The judgment referred to some past verdicts given by the apex court.

The judgment quoted Imtiaz Ahmed Lali vs. Ghulam Muhammad Lali case (PLD 2007 SC 369) wherein it was held that for the General Elections held in the year 2002, Chief Executive’s Order No.7 of 2002 enacted that if the candidate had been dismissed from service of Pakistan or a Province on the ground of misconduct involving moral turpitude, he shall be disqualified for contesting an election to parliament.

The relevant provision did not impose any time limitation. Consequently, the appellant who had been dismissed for misconduct from police service on 28.10.1990 was denied eligibility to contest election.

It was held that the appellant suffered a lifetime embargo on his eligibility for election because his dismissal from service for misconduct barred him permanently from future employment as that would be prejudicial to the good order and discipline of the police force.

The judgment ruled that it was clear from the findings recorded in the afore-noted judgment by this court that absence of a time limit for the ineligibility of a candidate for election in Article 62(1)(f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time.

“The reasons recorded in our judgment reinforce that conclusion,” the verdict ruled and noted that the Constitution envisages other situations in which a permanent bar on the eligibility of a candidate for election is enforced so long as the judgment that records or justifies the disability of the candidate remains in existence and occupies the field. The verdict further ruled that this view is supported by articles (1)(a) and 63(1)(b) of the Constitution that provide disqualifications on account of judicial declaration regarding the mental unfitness or the undischarged insolvency of a candidate for election. “These disabilities also continue so long as the adverse judgment is in the field,” the verdict maintained.

The judgment ruled that the restriction imposed by Article 62(1)(f) of the Constitution for the eligibility of a candidate for election to parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives.

“The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself; therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) of the Constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the Constitution,” says the judgment.

The court held that the qualities of sagacity, righteousness, honesty and trustworthiness laid down in Article 62(1)(f) of the Constitution as qualifications for membership to the elected Houses are actually derived from the Sunnah of the Holy Prophet Muhammad (PBUH). Such strengths can never be equaled by ordinary mortals for whom these are goals to strive for and more importantly not to consciously violate.

The foregoing aspects of Article 62(1)(f) of the Constitution do not encumber but regulate the fundamental right of political association and action under Article 17(2) of the Constitution. The incorporation of the requirement of declaration by a Court (in terms of Article 62(1)(f) of the Constitution) necessarily involves delinquent conduct by a candidate for election that is in violation of the law. A Court of law does not issue a declaration that offends mere sentiments or sensibilities. Consequently, a valid declaration by the Court would involve the breach of a legal duty or obligation owed by the candidate for election to another person or the violation of the latter’s legal right or privilege.

The verdict held that retributive justice entails several serious consequences apart from deprivation of personal liberty of the convict. Such a convict in fact suffers a loss of life by being immobilized, endures loss of his livelihood, watches disruption and hurt to his family and lives with the lasting stigma of conviction on his reputation.

“It is, therefore said that a convict, who has undergone a sentence of corporal punishment has ‘paid his dues to society’,” says the judgment adding that even after his release from jail, the convict faces many daunting challenges for rehabilitating himself in society as a responsible, productive and acceptable member thereof.

In this context, the verdict held that one should look at the disqualification under Article 63(1)(h) of the Constitution for a limited period of five years imposed upon a convict after his release from jail.

“Even so, with the limited period of his disqualification as an ex-convict for offences involving moral turpitude, he still carries the odium of his past conviction before the voters in his constituency, whose hearts and minds he has yet to win”, the verdict ruled.

The judgment noted that an ex-convict suffers huge handicaps to find dignity and acceptance for himself in society. It ruled that the notable effort by the Constitution to allow him an opportunity to reform himself and to strive for such a position in society cannot be deprecated for providing him relief rather than longer disenfranchisement.

The verdict held that a candidate for election who has committed misconduct falling within the terms of Article 62(1)(f) of the Constitution, in particular, misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office.

He cannot be compared to the case of an ex-convict under Article 63(1)(h) of the Constitution because he has not paid a personal price for his delinquent act. It is in such circumstances that a person declared to be dishonest or in breach of his trust or fiduciary duty or being non-righteous or profligate must suffer the burden of that finding of incapacity for as long as the Court decree remains in force.

The verdict noted that considering that the Constitution does not fix the period of incapacitation of such a judgment debtor shows a clear intention that the lack of qualification under Article 62(1)(f) of the Constitution should extend so long as the declaration of law envisaged in Article 62(1)(f) remains in the field.

“If such declaration is final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution becomes permanent”, the verdict ruled, adding that there is no reason for applying the rule of proportionality to the incapacity of a candidate for election following a final decree against him in term of Article 62(1)(f) of the Constitution.

Indeed the Court has no jurisdiction whatsoever to read into the Constitution nor any grounds for treating civil and criminal proceedings alike in relation to their respective consequences. The court directed that all 17 appeals and petitions challenging the length of disqualification under Article 62 (1)(f) for possessing fake degrees be fixed before appropriate benches for decision in accordance with the law laid down in this judgment, keeping in view the respective facts and circumstances of each case.

Meanwhile, in a separate note, Justice Sheikh Azmat Saeed observed lawmakers knowingly did not set a time frame for disqualification under Article 62 (1)(f). He also remarked that during the hearing of the case, some lawyers argued that the article’s clause was very strict.

He held that those who made these arguments were either former parliamentarians or a part of Parliament when the amendment was made. He observed that the court was empowered to interpret the Constitution but not amend it.

He observed that it was an equally elemental principle of interpretation of the Constitution that nothing could be added thereto, therefore, we (SC) cannot read into Article 62(1) (f) of the Constitution, a period of such lack of qualification, which is not mentioned therein.

He recalled that none of the learned counsel, who appeared before the court confronted the elephant in the room; the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a member is an effect of the declaration by a court of law.

Justice Sheikh also referred to Attorney General Ashtar Ausaf’s statement to the court that once declaration has been made by a Court of law that a person is not sagacious or righteous or non-profligate or honest and ameen, such a person is not qualified to be a member of Parliament.

“This lack of qualification is the effect of the aforesaid declaration, which is the cause and as long as the declaration by the court holds the field, the person in respect of whom such declaration has been made will continue to be deprived of the qualification to be a member of Parliament.

He observed that the stand taken by the learned Attorney General for Pakistan was not only fair, but also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution.

Incidentally, this Court on more than one occasion has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity. It is pertinent to mention here that on February 6, Nawaz Sharif had told the court that he would not be attending the proceedings after the bench had issued him notices.

He had contended that in his understanding "to take part in election process is a fundamental right and therefore no perpetual disqualification can be imposed on someone by interpreting Article 62 of the Constitution of Islamic Republic of Pakistan."

He further submitted to the court that a time limit could have been provided by Parliament but since it had not been done so, the issue of qualification under Article 62 is confined only to the election in question."

“I being a strong proponent of democracy believe that it is the right of people of Pakistan to participate in the process of election and to reject or elect candidate(s) of their choice”, Nawaz had contended, adding that the people enjoy an inalienable right to elect their representatives through a true democratic process and not be given the list of selective people through the process of elimination.