ISLAMABAD: The Supreme Court may determine whether a legislator sentenced to less than two years in prison by a trial court should be barred for life from contesting elections and becoming a member of parliament or a provincial assembly.

The question about perpetuity of disqualification under Articles 62 and 63 of the Constitution, which deal with qualifications and disqualifications of legislators, will be taken up a by five-judge larger bench in near future.

The decision was taken by a two-judge bench headed by Chief Justice Nasir-ul-Mulk on Monday which granted leave to appeal to Balochistan Assembly member Abdul Kareem Nausherwani who has challenged the March 2 Balochistan High Court judgment.

A notice has already been issued to Attorney General Salman Aslam Butt.

Nausherwani, who won the PB-46 Kharan seat in the last general elections, challenged the BHC judgment upholding the plea of his opponent Samiullah Baloch who had opposed his election on the grounds that he was a convict.

Senior counsel Dr Babar Awan, representing Nausherwani, told Dawn that his client had been sentenced in 1997 by then Ehtesab Bureau to two years with a fine of Rs1 million on charges of committing corruption and owning assets beyond known source of income.

Nausherwani challenged the conviction in the Supreme Court and also deposited the amount of fine which decreased his conviction to 14 days.

On Monday, Dr Awan cited a number of cases before the Supreme Court, including that of PML-N legislator Sumaira Malik who was banned for life in 2012 by a three-judge SC bench headed by then chief justice Iftikhar Muhammad Chaudhry under Article 62(1-f) of the Constitution for possessing fake degree.

He said the court should determine whether disqualification of legislators should be perpetual and futuristic if the sentence was for less than two years.

While hearing a set of identical petitions seeking disqualification of Prime Minister Nawaz Sharif, which were dismissed on Dec 9, 2014, by a seven-judge larger bench, Justice Jawwad S. Khawaja had formulated a number of questions for consideration with an emphasis to lay down a law suggesting what should be the minimum threshold for invoking Articles 62(1 f) and 63(1 g) of the Constitution against a member of parliament convicted by a court.

He also suggested that the larger bench should consider that the constitutional provisions of eligibility for elected office requiring an elected person to be ‘honest’ and ‘ameen’ have to be given meaning because these terms have to be interpreted since they constitute a substantive part of the Constitution. It is the people who have, through the Constitution, mandated and are entitled to ensure that members of parliament elected by them fulfil the eligibility criteria and qualifications given in Articles 62 and 63 of the Constitution.

Justice Khawaja had said the bench should also consider as to what was the effect of material changes made in Articles 62 and 63 by virtue of the 18th Amendment passed in April 2010.

The bench had held that it was of the utmost importance that these questions be answered, because challenges to the qualifications or disqualifications, eligibility of elected members and also elections and by-elections were a recurring phenomenon and it was necessary that courts, returning officers and election tribunals received guidelines.

Similarly, Justice Asif Saeed Khosa, who was a member of the bench hearing the case about disqualification of the prime minister, had held that vague, uncertain, obscure and conflicting terminology of Articles 62 and 63 was bound to confuse the electorate at large, hound candidates and their voters and embarrass returning officers at the time of scrutiny of nomination papers.

Published in Dawn, March 31st, 2015

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