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A new constitutional window

The Supreme Court in its lifetime disqualification judgment has not only decided the constitutional questions relating to Article 62(1)(f) of the constitution regarding the disqualification period but also admitted the legislative competence of parliament and elaborately overruled its earlier principles laid down in Sami Ullah Baloch case in 2018, with the further explanation that the SC is only there to interpret the constitution and it should not assume the role of reading into or rewriting the constitution.

In the constitutions of 1956 and 1962, as well as in the current 1973 constitution, the provisions governing the qualifications and disqualifications of parliamentarians were historically ascertainable, objective, and contained succinct language that primarily addressed the age, solvency, citizenship, and mental capacity of the individual in question. However, on March 2, 1985, General Ziaul Haq issued the Revival of Constitution of 1973 Order (RCO), amending 67 clauses and sections out of the 280 articles of the constitution.

This step represented the biggest shift in Pakistani history in a single blow, the amendments adding new requirements regarding the applicant’s reputation and personal qualities, such as “good character”, “adequate knowledge of Islamic teachings”, “sagacious, righteous, and non-profligate and honest and ameen”, and the refusal to be convicted of a crime involving “moral turpitude”.

Article 62 states that “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he is a citizen of Pakistan; he is, in the case of the National Assembly, not less than twenty -five years of age and is enrolled as a voter in any electoral roll in any part of Pakistan, for election to a general seat or a seat reserved for non-Muslims; and any area in a Province from which she seeks membership for election to a seat reserved for women.

“He is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; he is of good character and is not commonly known as one who violates Islamic Injunctions; he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan”.

Article 63 deals with the disqualification of lawmakers from participating in elections and refers to Articles 63(1)(g), (1)(h), (i) (c), etc, which suggest ineligibility for five years even if the individual is accused of damaging the integrity and sovereignty of Pakistan.

In 2023, parliament amended the Election Act 2017 and limited the period of disqualification to five years. The amendment further states that the procedure, manner, and duration of disqualifications and qualifications should be as specifically provided for in relevant provisions of Articles 62 and 63 of the constitution, and where no such procedure, manner or duration has been provided for the provisions of the Act shall apply. This new amendment was not challenged in the SC.

There is no question under law that the legislatures did not purposefully create any disqualification periods specified in Article 62 of the constitution, except those outlined in Article 63(1)(G) and (H). Since 2008, the Supreme Court has issued number of judgments on this subject such as PLD 2023 SC 42, 2023 SCMR 370, PLD 2020 SC 137, PLD 2015 SC 275, PLD 2020 SC 591, 2018 SCMR 2121, PLD 2018 SC 578, PLD 2018 SC 405, PLD 2016 SC 657, 2013 SCMR 1655, and PLD 2020 SC 591, each with a different interpretation of these provisions, particularly Article 62(1)(f).

Therefore, critics had the opportunity to point out that Article 62 has been a political victimization instrument. It was also not uncommon for opponents to utilize legal technicalities or arbitrary interpretations to single out and disqualify their competitors, giving rise to charges of utilizing the legal system for political purposes. Thus, the electoral process had become more complicated and occasionally un-cleared as a result of the interpretation and implementation of Article 62, which had given rise to legal disputes and judicial lawsuits.

With this backdrop, the Supreme Court assembled a larger bench with seven members to re-examine its earlier judgments and the new legislation introduced as Section 232 of the Election Act 2017 to address the anomalies of the previously referred judgments regarding the period of disqualification related to Article 62(1)(f) of the constitution. The attorney general of Pakistan and the advocates-general of each province and the Islamabad Capital Territory have testified before the bench on several occasions, supporting the validity and constitutionality of Section 232(2) of the Elections Act, 2017.

The present judgment has addressed seven areas of the constitutional principles. First, Article 62(1)(f) is not self-executive because it does not, by itself, designate the court of law that will issue the declaration mentioned in it, nor does it outline any process for doing so or the duration of any disqualification that may result from it.

In order to comply with the requirements of the fundamental right to a fair trial and due process guaranteed by Article 10A of the constitution, no law specifies the procedure, process, or identification of a court of law for making the declaration mentioned in Article 62(1)(f) and the duration of such a declaration for disqualification.

The previous interpretation of Article 62(1)(f), which amounts to reading into the constitution and imposes a lifetime disqualification upon an individual through an implied declaration of a civil jurisdiction court while deciding upon certain civil rights and obligations of the parties, is outside the purview of the aforementioned article. The abridgment of citizens’ fundamental right to run for office and vote for the candidate of their choice, as guaranteed by Article 17 of the constitution, in the absence of reasonable limitations imposed by law, is another reason why this reading of the constitution goes against the principle of harmonious interpretation of its provisions.

Article 62(1)(f) acts as a guide for voters in exercising their right to vote and is on the same legal footing as Articles 62(1)(d), (e), and (g) – until a law is passed to render its contents executory.

The position adopted in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) is overruled because it reads the declaration of a civil jurisdiction court regarding the violation of specific rights and obligations as a statement mentioned in Article 62(1)(f) and renders it permanently disqualifying.

With the Elections (Amendment) Act, 2023, which was enacted on June 26, 2023, Section 232(2) was added to the Elections Act, 2017, providing a five- year period for disqualification resulting from any court judgment, order, or decree under Article 62(1)(f). This declaration is also subject to due process of law. This clause is currently in effect.

In light of this, the Supreme Court needed to take a balanced constitutional approach to preserve the integrity of the democratic process while guaranteeing that the requirements outlined in Article 62 are just, reasonable, and per the needs of modern Pakistani society. The Supreme Court has rightly held that the court should have refrained from reading into the constitution on its own or offering differing views regarding the declaration of regret and disqualification.

In addition, there have been voices calling for a review of the Supreme Court’s Sami Ullah Baloch PLD 2018 SC 405 ruling, which the SC has done and given a harmonious interpretation of the constitution. The current ruling of the Supreme Court will significantly alter Pakistan’s political and constitutional concerns, remove legal confusions, and provide new guidelines for a relationship that was formed as the triangle of power under the parliamentary system of government.

Hafiz Ahsaan Ahmad Khokhar, "A new constitutional window," The News. 2024-01-10.
Keywords: Political science , Political issues , Political victimization , Democratic , Elections , Sami Ullah Baloch , Abdul Karim Nausherwani , Pakistan , PLD , RCO