In a historic verdict set to alter the nation’s political landscape, the Supreme Court (SC) on Friday ruled that disqualification under Article 62(1)(f) of the Constitution was for life.
“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,” the pertinent Article reads.
Justice Umar Ata Bandial read the verdict, unanimously endorsed by the five-member bench, which stated that permanent disqualification is neither arbitrary nor unjust nor unreasonable; it is ample, the bench remarked.
The verdict stated, “the 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 written order issued by the five-member bench stated that Articles 63(1)(a) and 63(1)(b) of the Constitution allowed disqualifications on account of a judicial declaration. The verdict also stated that the order will remain in effect so long as the declaratory judgment supporting the conclusion of delinquent kinds of conduct under Article 62(1)(f) of the Constitution remain in effect.
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While giving additional notes, Justice Azmat Saeed Sheikh said the court was empowered to interpret the Constitution but
not amend it. “It is an equally elemental principle of interpretation of the Constitution that nothing can 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 said.
Justice Sheikh said some counsels had expressed concern over lifetime disqualification saying this may be disproportionate and a little harsh. “Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. We, as stated above, can only interpret the Constitution not amend or change it,” Justice Sheikh said. “This aspect of the matter is rather ironic as several persons before us were or had been the Members of Majlis-e-Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way.”
He added that none of the learned counsels, who appeared before 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.
However, Justice Sheikh added that Attorney General of Pakistan (AGP) Syed Ashtar Ausaf Ali addressed the court and in no uncertain terms stated 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 qualifications to be a
Member of Parliament.”
“The stand taken by the learned Attorney General for Pakistan is not only fair but is 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 occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity,” Justice Sheikh added.
The five-member bench further observed that such a restriction was fair in a democratic setup. As a result, former prime minister Nawaz Sharif and former secretary general of Pakistan Tehreek-e-Insaf (PTI) Jahangir Tareen stand disqualified from holding public office for life. The apex court ruled that Nawaz and Tareen can never hold public office again nor contest elections.
No PML-N or PTI leader was present in the courtroom when the verdict was delivered. Women Pakistan Muslim League-Nawaz (PML-N) activists are staging a demonstration before the court.
Tareen took to Twitter shortly after the verdict was announced. “I always believed 62 1(f) to be for life but not applicable in my case.Full money trail provided of tax paid income, property declared in assets of children and not mine on advice of tax consultant. This was the only issue. My review is still pending and IA justice will prevail,” he said.
Minister for Broadcasting and Information Marryum Aurangzeb said no allegations of corruption against the former premier has been proven in accountability courts. “This verdict is reminiscent of the 1999 plane hijacking case judgement,” she said. “This verdict had been decided before the trials,” she added.
Lauding the verdict, PTI lawyer Chaudhry Faisal Hussain said omission in any constitutional provision could not be interpreted by any of the courts.
In February, the bench reserved judgment on the case. During the same month, Nawaz contended before the SC that disqualification under Article 62 was “confined only to the election in question, and not perpetual”. He stated this in a written statement in the matter related to the interpretation of Article 62 (1)(f) of the Constitution.
The apex court disqualified Nawaz as premier in a landmark judgement on the Panama Papers case in July, 2017. The top court also disqualified the PML-N supremo from holding party top slot on February 21 this year.
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On July 28, 2017, the SC disqualified prime minister Nawaz Sharif from holding public office over failure to disclose his ‘un-withdrawn receivables, constituting assets’ in his nomination papers filed ahead of the 2013 general elections. Interestingly, his disqualification was not made on the basis of the corruption charges levelled by the PTI after the emergence of Panama Papers. The 11.5 million documents from the Panamanian law firm, Mossak Fonesca, exposed how the affluent all over the world used shell companies and offshore tax havens to hide their wealth.
The disqualification was made on the basis of documents collected by the Joint Investigation Team probing the Sharif family through a Mutual Legal Assistance (MLA) request. The documents showed the former PM an employee of Dubai-based firm Capital FZE and board chairman drawing a salary.
‘Sadiq and Ameen’
On March 2, 1985, General Ziaul Haq issued The Revival of Constitution of 1973 Order (RCO), changing 67 clauses and sections of 280 Articles of the Constitution. It represented the largest number of changes in a single stroke in the history of Pakistan. The change was undertaken in response to the relative lack of success his pawns had in elections held three days earlier. The purpose was to rework the Constitution to concentrate all power with the dictator.
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Some of the controversially reworked language included clauses in Article 62, which now required members of Parliament to meet the conditions of being Sadiq and Ameen – two Arabic terms which were never clearly defined in English, the language of the Constitution. For years, the clause has been a favourite tool of right-wing politicians, especially those spawned by the Zia regime, to smear ‘liberal’ opponents.
On July 28, 2017, history came full circle with the Supreme Court disqualifying Nawaz from the National Assembly for ‘dishonesty’ – namely his failure to declare certain assets. Ironically, during the drafting of the 18th Amendment to the Constitution in 2009 and 2010, the PML-N had opposed the removal of Article 62.