Legal fraternity divided over Supreme Court’s quashing of lifetime disqualification

Lawyer Basil Nabi Malik termed the judgement a “much-needed correction in the legal landscape of Pakistan”, adding that the decision to ban politicians on the “obtuse and unascertainable yardstick of ‘sadiq and ameen’ was always going to be controversial, problematic and in contravention to the established norms of democracy”.

He said that with lifetime disqualification, the apex court had taken away the electorate’s right to choose their leadership and had decided to sanitise and regulate their choices.

“This decision appears to have given back the reigns of governance to the people and has acknowledged their right to choose, and for such choice to reign supreme over those who are unelected, and perhaps, to some extent, uninformed, about the ground realities and issues actually afflicting our citizenry,” he said.

Barrister Asad Rahim was critical of the verdict, said: “Yet again the Supreme Court has unsettled its own settled law in favour of sticky-taping a person-specific, subconstitutional bill on top of the Constitution.

“Judges being brought in to disqualify lawmakers for being immoral was not a Zia-era fiat; they were included in Article 62(1)(f) for the first time by our own elected democrats through the Eighteenth Amendment. A lawmaker is, for that reason, ineligible for as long as there is a court declaration to the contrary — as held absolutely correctly by Justice Yahya Afridi in his dissent.

“For the previous regime to try and get around that same amendment now by distorting the Election Act of 2017 was plainly wrong.”

He said the apex court “seems to be in the habit of legalising the bad laws of minority regimes each time they circumvent the will of the people, the dignity of parliament, and the need for a constitutional amendment via a two-thirds majority”.

Barrister Rahim added that between “passing the bogus practice and procedure law and upending electoral disqualification, the next government should be confident in never having to need to go to the public or marshall the numbers to amend the Constitution, given that this court is so willing to accommodate whichever fly-by-night ordinary legislation is passed to disrupt the existing constitutional scheme”.

Lawyer Mirza Moiz Baig remarked that since the Supreme Court’s judgement in the Samiullah Baloch, an “analogous situation” had emerged where those convicted of heinous crimes could become qualified to serve as members of Parliament after some time while those deemed ‘dishonest’ in terms of Article 62(1)(f) for minor infractions, such as not mentioning the number of spouses they had, were “perpetually condemned from the electoral realm”.

“While the Parliament’s ability to overrule a judgement interpreting a constitutional provision without amending the constitution itself was suspect, there were no fetters on the larger bench constituted by the chief justice holding that the court’s judgement in Samiullah Baloch was erroneous and did not correctly interpret the ambiguity underpinning Article 62(1)(f).”

He added that while the merits of the judgement might only be apparent after the release of the detailed verdict, the decision “once again serves as a reminder to amend the nebulous provisions in the Constitution relating to the disqualification of legislators”.

Baig cautioned that without meaningful reforms and with successive governments using such provisions to amputate political rivals, judgements such as the one today would “only provide momentary respite”.

Lawyer Rida Hosain pointed out that CJP Isa repeatedly stated that Article 62(1)(f) was included during the tenure of a military dictator.

However, she said that while the article was added by former military dictator Ziaul Haq, elected representatives had not only retained Article 62(1)(f) but also added to it through the 18th Amendment.

“It was the representatives of the people that said a person must be sadiq and ameen, ‘there being no declaration to the contrary by a court of law’.

“The Constitution is silent on the duration of the disqualification under Article 62(1)(f). Judging whether a person is ‘righteous’, ‘honest’ or ‘ameen’ inevitably involves a subjective exercise.

“Different judges may have different ideas of what is considered enough to pass the test of honesty. Allowing highly moralistic declarations of ‘dishonesty’ to result in a lifetime disqualification would be a disservice to our democracy,” she said.

Hosain added that sole dissenting judge Justice Afridi held that the disqualification would only remain in force until the declaration by a court remained in force. “This interpretation makes sense of the constitutional provision,” she added.

She further said that what the majority of the bench decided today was “highly problematic”.

“It has effectively rendered Article 62(1)(f) of the Constitution redundant. The court has said that until a law is enacted to make Article 62(1)(f) executory, it will simply serve as a ‘guideline’. This is not what the Constitution says. Unelected judges have defanged a constitutional provision.

“The further troubling aspect is what this means for the finality of Supreme Court decisions. In 2018, five judges held that a disqualification under Article 62(1)(f) would prevail as long as the court declarations were in force. If the court declaration had attained finality, it would have permanent effect. Just a few years later, six other judges have said they were wrong. Essentially, the highest court has said: we are neither infallible nor final,” the lawyer remarked.

Meanwhile, lawyer Abdul Moiz Jaferii said the verdict was a “correct interpretation” of the Constitution which arrived in “peculiar circumstances”, adding that in time they would “overshadow the decision itself”.

“Samiullah Baloch was a decision rendered at a particular time to keep a particular person out. It has been undone today.

“Today’s decision will be opined upon primarily as being one rendered at another particular time to let a particular person in. The fact that it corrects a perversion of the Constitution is secondary,” the lawyer opined.

Lawyer Usama Khawar termed the decision a “positive and commendable development from legal, constitutional, political and democratic perspectives”.

He said the previous verdict of the court had demonstrated a “clear instance of the court exceeding its constitutional boundaries, effectively engaging in legislative functions, which is not within its purview. The court assumed a role that improperly encroached upon the authority of the legislature.”

Khawar explained that from a political standpoint, the court’s earlier decision was “notably undemocratic”, particularly in its imposition of a lifelong disqualification on Nawaz.

“In a democracy, the primary right to elect representatives rests with the voters, exercised through the ballot, and should not be influenced by unelected courts or the establishment.

“This corrective decision is expected to fortify democracy and the role of Parliament in Pakistan. The Supreme Court should now permit the active participation of all major political leaders in general elections, allowing voters to exercise their democratic power.

“This inclusive approach is vital for elevating and safeguarding the credibility and reputation of the superior judiciary. It is crucial that this decision is not perceived as showing favoritism towards any specific political leader or party.”

More to follow.