One Constitution, one set of laws but interpretations, results vary

ISLAMABAD: We have one constitution and one set of statutes but such has been the interpretations of the constitutional articles and legal sections by the judiciary that the crime of “misdeclaration” in some cases only leads to the unseating of a member of parliament but in others’ cases it brings in for them life-time ban in politics.

Moreover, without going into the complexities of the court’s interpretations, the outcome of judiciary’s decisions including the one handed down on Friday is simple- the act of misdeclaration, even if made unintentionally, is the biggest crime for a politician and is even worse than a public office holder convicted of corruption, murder, rape or even the one having acted against the state.

In consequence of an earlier decision of the Supreme Court, Nawaz Sharif was removed as president of the PML-N. In that case the apex court had ruled that Article 17 and Article 63 “deal with the same broad subject and have to be read, understood and interpreted harmoniously”.

On the contrary, in the latest judgment, the Supreme Court rejected as “flawed” the idea of reading Article 62 with Article 63 of the Constitution. The SC ruled, “Although the ultimate result of a candidate for election lacking a qualification under Article 62 of the Constitution or for incurring disqualification under Article 63 of the Constitution is the same, namely, his ouster from the election contest, yet the object, meaning and effect of the two provisions is very different.

The view that qualifications and disqualifications are interchangeable and therefore, the consequences of incurring either, namely, period of ouster from the election contest should be similar because the same misconduct can form the subject matter of both the provisions, is flawed.”

For the readers’ understanding, without linking the Article 17 with Article 63, it was not possible to disqualify Nawaz Sharif as president of the PML-N. In the latest judgment, the Article 62 had to be read independently without linking it with Article 63 because otherwise, the life time ban under Article 62(1)(f) would not have been possible.

In case the SC had opted to interpret the term of disqualification under Article 62(1)(f) while reading it with Article 63, there would have been a constitutional answer to that because Article 63 talks about the different terms of disqualification in different nature of crimes.

Linking Article 62 with Article 63 would have resulted in some clarity about the term of disqualification depending on the nature of the crime or conviction. Although Article 62(1)(f) under which Nawaz Sharif and Jehangir Tareen have been disqualified there is no mention of term of disqualification, Article 63 has a clear picture about the terms of disqualification.

Both Nawaz and Tareen have now been disqualified for life because they had misdeclared their assets and because they were judged under Article 62(1)(f) of the Constitution. Otherwise under the tax law, the act of misdeclaration generally results in penalty (deposit of tax evaded and fine). However, in Article 63 there is no life ban even for a person who has committed much graver and much heinous crime.

As per the Constitution and the SC’s latest judgment, a convicted thief, dacoit, rapist, murderer, child abuser or even a traitor is qualified to become member of Parliament after five years of the completion of his jail sentence. However, for the likes of Nawaz and Jehangir the doors of Parliament and politics are closed for life despite their much lesser crime of misdeclaration.

Article 63(1)(g) and (h) talks about the period of disqualification of convicted criminals. Article 63(1)(g) reads as: “(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if; (g) 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 of Pakistan, unless a period of five years has elapsed since his release.”

Article 63(1)(h) reads as: “(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if; (h) 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.”

While Article 63(1)(g) covers even a traitor, the offences that can fall in the category of moral turpitude- the expression used in Article 63(1)(h)- are too many.

According to a legal expert, in US the offences falling in the category of “moral turpitude” are too many and even include the crimes of murder, rape, child abuse, kidnapping etc.

Recently this correspondent had contacted the constitutional expert and seasoned parliamentarian Wasim Sajjad for his interpretation of these provisions, he said that the provisions covered convicts of almost all serious crimes including a traitor. He had said that as per these constitutional provisions, the convicted criminal after five years of his release from jail becomes eligible to become member of Parliament.

Wasim Sajjad had explained that Nawaz Sharif and Jehangir Tareen have become the victim of Article 62(1)(f), which though requires a member of Parliament to be Sadiq or Ameen but does not mention any time period for disqualification.

In Panama case, Nawaz Sharif was disqualified for not declaring the unwithdrawn receivable. The verdict precisely said, “It has not been denied that respondent No. 1 (Nawaz Sharif) being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.”

In the case of Jehangir Tarin, the SC ruled, “We hold and declare that in view of our findings on the proposition about the offshore company (in short) covered by clause (e) of the conclusion, the respondent is disqualified in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA for the non-declaration of his property/asset i.e. “Hyde House” in his nomination papers, and in making untrue statement before this Court, that he has no beneficial interest in SVL, therefore, he should cease to hold the office as the member of the National Assembly with immediate effect.”

In yet another interesting contradiction, some other MPs including a PML-N MNA Justice (R) Iftikhar Cheema was only unseated and not disqualified for life by the same apex court for same crime of misdeclaration of asset. Cheema though had also admitted to have misdeclared, he was only us-seated and allowed to contest the elections immediately. Consequent to the apex court order, he was us-seated but later re-elected as MNA in the by-election of the seat vacated earlier by him.

Cheema was unseated by the apex court while hearing an appeal against the decision of election tribunal in an election petition filed under ROPA.