After much ado, the Supreme Court of Pakistan nullified a lifetime disqualification order on Monday, setting aside its previous order which meant that politicians would not be able to hold office throughout their lives, just ahead of the elections on February 8.
It has been declared by the Supreme Court that no person can be denied the opportunity to run in elections for the rest of his or her life if he or she was disqualified under Article 62 (1)(f), overturning its landmark judgement in the Samiullah Baloch case.
A larger bench of seven members – headed by Chief Justice of Pakistan Qazi Faez Isa, and including Justices Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali – conducted the hearings of this matter.
On the website of the supreme court, the proceedings of the case were streamed live.
There was a 6-1 majority on the bench to pronounce the verdict, while Justice Yahya Afridi disagreed with his fellow judges, supporting the previous judgment given by the apex court.
This legal conundrum arose after the parliament voted to amend the Elections Act 2017 in a way that limited the period of disqualification for politicians to five years, instead of lifetime. This was contrary to the Supreme Court’s order, which ruled that disqualification was “permanent” under Article 62(1)(f).
In a recent judgment, a federal court ruled that Nawaz Sharif, the supreme leader of the Pakistan Muslim League-Nawaz (PML-N), and Jahangir Tareen, the leader of the Istehkam-e-Pakistan Party (IPP), can finally run for office, since they were disqualified for life.
As part of the announcement of the reserved verdict, the chief justice noted that since the election schedule had already been announced, it would be “necessary” to issue the order as soon as possible.
A few days ago, the chief justice of the Supreme Court made a remark regarding the disqualification of anyone from contesting to be a member of parliament as being “against Islam”. He quoted a verse from the Surah Sajdah that clarifies that people are not bad, but their actions are.
The president of the Pakistan Institute of Legislative Development and Transparency (Pildat), both expressed the opinion that “this is a timely order.”.
There is no self-executive provision in Article 62(1)(f) of the Constitution because the provision does not specify a period of disqualification of a person by itself, as stated in the written order of the SC.
A law does not provide for the procedure, process, and identification of the court of law responsible for making the declaration as stated in Article 62(1)(f) of the Constitution, nor does it specify the duration of the declaration which is required to meet the requirements of the Fundamental Right to a Fair Trial and Due Process guarantee by Article 10A of the Constitution, which guarantees the right to a fair trial and due process.
It has been observed in the order that the interpretation of Article 62(1)(f) of the Constitution as imposing a lifetime disqualification upon a person by an implied declaration of a court of civil jurisdiction governing some civil rights and obligations of the parties goes beyond the scope of the said Article and amounts to reading into the Constitution.
There is a fundamental right enshrined in the Constitution for citizens to contest elections and to vote for a candidate of their choice, a right that is abridged by the order mentioned in the Constitution, in the absence of reasonable restrictions imposed by the law, which would constitute a violation of the principle of harmonious interpretation of constitutional provisions. However, the order mentioned is against the principle of harmonious interpretation of constitutional provisions.
The order goes on to state that Article 62(1)(f) of the Constitution, until a law is enacted enacting its provisions into law, stands on a similar footing as Article 62(1)(e), (g), and (d), which serves as a guideline for the voters to follow in exercising their right to vote.
According to the view taken in the Samiullah Baloch case, when a court of civil jurisdiction declares that certain civil rights have been breached as a declaration in accordance with Article 62(1)(f) of the Constitution, it is a declaration referred to under Article 62(1)(f) of the Constitution, and to make such declaration have a lifelong disqualifying effect amounts to reading into the Constitution, which is therefore overruled.”
The order added that due to the fact that Section 232(2) of the Elections Act, 2017, which was added on June 26, 2023, prescribed a period of five years for the disqualification resulting from any judgment, order, or decree as per Article 62(1)(f) of the Constitution on June 26, 2023, there did not have to be a formal examination of its validity and scope in the present case.
Despite this, Justice Afridi expressed a disagreement with his colleagues that a member of the parliament who does not meet the requirements of Article 62(1)(f) is neither lifelong nor permanent in his lack of qualification, and the same will remain in effect only during the period during which the declaration by the court of law remains in effect.
In light of the above, the Supreme Court’s decision in Sami Ullah Baloch versus Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed, according to the judge of the Supreme Court.
That news provided by timenews.
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