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Thursday March 28, 2024

Harsh judgment: Justices unswayed by arguments of amici curiae

By Tariq Butt
April 14, 2018

ISLAMABAD: The Supreme Court that handed down the harshest judgment imposing life ban on disqualified MPs to contest elections did not agree even with the submissions made by the two amici curiae, engaged by it for assistance.

Both the amici curiae – Munir A Malik and Syed Ali Zafar – opposed perpetual ban or any length of bar on the MPs declared ineligible under Article 62(1)(f) to vie for an elected office. Their assertions figured in the unanimous verdict.

It said that Malik noted that a settled principle of interpretation of the Constitution is that it should be read as a whole. The chapter of fundamental rights lies at the heart of the Constitution and the right to contest elections emanates therefrom.

He argued that Articles 62 and 63 are not preceded by a non-obstante clause, therefore, they must be read in a manner that advances and doesn’t curtail the fundamental right to contest election. Furthermore, Article 62 setting out qualifications and Article 63 laying down disqualifications for election to a seat in Parliament ought to be read together as they are complementary to each other.

“According to the textual history of the Constitution, the provisions, inter alia, of Article 63(1)(g) and (h) belong to a set of disqualifications that are based on past delinquent conduct of a candidate. Prior to the 18th Constitutional Amendment, the conviction for such delinquent conduct resulted in disqualification without a time limitation, hence these were construed as being of permanent effect,” he said according to the verdict.

It said that Syed Ali Zafar argued that the present exercise is essentially a journey to discover the silence of the Constitution. This is because no time limitation has been prescribed for the incapacity imposed on a candidate by Article 62(1)(f). From the historical perspective, the disqualification under Article 62(1)(f) is permanent which represents one extreme; on the other hand, the other extreme perspective can be that disqualification is for one election term, that is five years. However, he advocated a third approach for fixing a time period between those two extremes to be determined by the court as it deems fit.

The amicus curiae stated that in doing so, the court will be adopting the structural methodology of constitutional interpretation. He then referred to six modalities of construction of constitutional provisions as per Philip Babbitt in his book “Constitutional Interpretation” referred to in Al-Jehad Trust vs. Federation of Pakistan. By following the structural modality for interpretation of the constitutional provisions in the present case, the court would give due importance to the fundamental right of citizens to contest election under Article 17. Moreover, qualifications for and disqualifications to contest election for a seat in Parliament under Articles 62 and 63 in essence deal with a common subject and therefore the two provisions are complementary to each other and ought to be read together.

Ali Zafar said that a person who has committed a criminal offence involving moral turpitude is permitted to contest election after a lapse of five years of his release from prison, therefore, the constitutional intention cannot be to inflict a graver punishment of a life time bar to contest election upon a person who has committed a dishonest act. Finally, he submitted that by omitting to prescribe a period of incapacity for lack of qualification of a candidate for election, Article 62(1)(f) purposefully left the extent of the exclusionary bar to the discretion and judgment of the court.

Eminent lawyer and human rights activist deceased Asma Jehangir’s arguments given in this case while representing Rai Hassan Nawaz also figured in the judgment. She said that Hassan Nawaz was disqualified under Article 62(1)(f) for not declaring his inherited property in his statement of assets. This is because this asset was held in the name of a family company. He derived no advantage from its non-disclosure but has been subjected to a life time bar for mis-declaration and concealment of his assets.

She argued that Article 62(1)(f) is vague in its language for lacking a specific period of incapacitation of a candidate for election and sets an exceptionally high standard of human character to be met by him. She also contended that sagacity and non-profligacy are subjective terms for which determination or quantification can be onerous and irrational. Although the meaning and effect of these terms was a matter for Parliament to determine, the courts have the authority and power to apply the rule of proportionality in order to avoid the harsh consequence of permanent incapacitation of a candidate under Article 62(1)(f).

She submitted that Section 99(1)(f) of the (now repealed) Representation of People’s Act (ROPA) provides the same substantive qualifications as expressed in Article 62 but these do not create a permanent embargo. Consequently, for the lack of the same qualification to contest election for Parliament, there are divergent provisions in the statute and in Article 62(1)(f). The constitutional mandate in Article 62(1)(f) ought to be construed and enforced in the light of these statutory provisions, she said.