SC rules against lifetime disqualification; Nawaz and Tareen eligible to contest polls

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With the 2024 general elections just a month away, the Supreme Court on Monday ended lifetime disqualification for lawmakers under Article 62(1)(f) of the Constitution in a 6-1 majority verdict.

The apex court overruled its 2018 judgment in the Samiullah Baloch case, when it had ruled that disqualification handed down under Article 62(1)(f) was supposed to be “permanent”.

Key takeaways from today’s verdict:

6 to 1 majority deems Article 62(1)(f) non-self-executing without specific disqualification procedures
Lifetime disqualification interpretation exceeds article’s scope, violates fundamental rights
Acknowledges Elections (Amendment) Act 2023, setting 5-year disqualification period
Nawaz, Tareen cleared to stand in elections

Article 62(1)(f), which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous), is the same provision under which former prime minister Nawaz Sharif was disqualified in the Panama Papers case. Istehkam-i-Pakistan (IPP) leader Jahangir Tareen was also disqualified under the same provision.

Following today’s verdict, both Nawaz and Tareen have been cleared to contest the elections.

On Friday, a seven-member larger bench, headed by the Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Syed Mansoor Ali Shah, Justice Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, had reserved the verdict on the contentious issue of lawmakers’ lifetime disqualification.

The legal conundrum arose in view of the SC’s 2018 verdict issued by former chief justice Mian Saqib Nisar, Justice Sheikh Azmat Saeed, ex-CJP Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah. However, in June 2023, an amendment was brought in the Elections Act 2017, specifying that the period of the electoral disqualification will be for five years, not for life.

In a short order issued today, a copy of which is available with Dawn.com, the apex court said: “Article 62(1)(f) is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.”

“There is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder, to meet the requirements of the fundamental right to a fair trial and due process guaranteed by Article 10A of the Constitution,” it stated.

The court said the “interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution”.

“Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law,” it added.

The court further ruled that until a law was enacted to make its provision executory, Article 62(1)(f) stood on a similar footing as Article 62(1)(d)(e)(g) — which talks about the qualification of a lawmaker — and served as a guideline for voters in exercising their right to vote.

“The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled ,” the SC added.

It further noted that the recent amendments to the Elections Act prescribed five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and had also made such declaration subject to the due process of law.

“This provision is already in field, and there remains no need to examine its validity and scope in the present case,” the top court ruled.

In his dissent note, Justice Afridi said he disagreed with his fellow judges.

He noted that the extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) was “neither lifelong nor permanent and the same shall remain effective only during the period the declaration so made by a court of law remains in force”.

“Therefore, the conclusion so drawn by this court in Sami Ullah Baloch Versus Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed,” Justice Afridi added.

Reacting to the verdict, PML-N’s Marriyum Aurangzeb said a “dark chapter” had come to an end today, alleging that the lifelong disqualification was aimed at making Nawaz a target of political revenge.

In a post on social media platform X (formerly Twitter), she said the “interpretation” of Article 62(1)(f) had pushed Pakistan and the public into the swamp of inflation, economic destruction and international disgrace.

Separately, the party itself said today’s verdict was not just a victory for Nawaz but “this is a victory for truth and Pakistan’s history”.

Speaking to the Geo News, PML-N Senator Azam Nazeer Tarar praised the verdict as a “timely decision” that helped clarify the confusion of returning officers.

“They [SC] did not change the law, they made a correction in the Samiullah Baloch case.

“In fact, the SCBA [Supreme Court Bar Association] and Pakistan Bar Council had criticised this and requested the SC to review this again. So it’s good that all cases were brought together and a larger bench reviewed this and, in my opinion, ended this injustice,” he stressed.

Tarar added that the court’s decision could not impact that which was written into the law as a fundamental right.

Meanwhile, Itehkam-i-Pakistan Party spokesperson Dr Firdous Ashiq Awan said the apex court had given a “landmark judgement” and removed “thorns laid down in democratic corridors”.

“It is a fundamental democratic right of political representatives to reach the floor of Parliament,” she said, adding that the IPP welcomed the “exemplary decision”.

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