ISLAMABAD: As a five-member bench of the Supreme Court on Friday handed down disqualification of Prime Minister Nawaz Sharif under Article 62(1)(f) of the Constitution, a debate started to rage whether the former premier is out for life or may join his political fraternity as a parliamentarian after some time.
When this question was put to some seasoned lawyers, everybody seemed to be confused but some said that the issue needed determination since the same question had long been pending, though forgotten, before a larger bench of the Supreme Court.
Tariq Mehmood, former president of the Supreme Court Bar Association, told Dawn that a larger bench of the Supreme Court was seized with a number of cases, including those of Samina Khawar Hayat and Mohammad Haneef, in which the moot point was to determine whether disqualification under Article 62(1)(f) of the Constitution was perpetual or not.
A larger bench of SC has to determine whether disqualification under Article 62(1)(f) is temporary or permanent
Former chief justice Anwar Zaheer Jamali, while hearing one of such cases, had wondered how anyone could be disqualified from participating in elections forever on the basis of Articles 62 and 63 of the Constitution, saying people could reform themselves to be qualified under the provisions after being disqualified at some point of time.
Senior lawyer Raheel Kamran Sheikh recalled that earlier former prime minister Yousuf Raza Gilani was disqualified on June 19, 2012 from holding a seat in parliament for committing contempt of court under Article 63 of the Constitution, which specified disqualification for five years.
Unfortunately under Article 62(1)(f) no period of disqualification had been specified, he said, but endorsed what Mr Mehmood observed, adding that some cases were pending to determine should the application of Article 62(1)(f) be restricted to the current election or to all times to come.
Mr Kamran said that the Supreme Court was in a Catch-22 situation since by citing the reasons for disqualification of Mr Sharif, it had lowered the threshold for ineligibility of elected members to such an extent that too many heads might start rolling in future.
Through the Panama Papers judgement, he feared, the balance of power had been tilted in favour of the Supreme Court and the qualification of parliamentarians had been threatened.
He said if the judgement was implemented across the board, the parliamentarians, feeling threatened, might react by getting together for a constitutional amendment aimed at curtailing or restricting the scope of powers under Article 62 of the Constitution.
One the other hand, vice chairman of the Pakistan Bar Council Ahsan Bhoon said the disqualification (of Mr Sharif) was forever. To substantiate his point of view, he cited the 2013 Abdul Ghafoor Lehri case in which former chief justice Iftikhar Muhammad Chaudhry had held that under Article 63, there were certain disqualifications which were of temporary nature and a person disqualified under Article 63 could become qualified after the lapse of certain period, whereas the disqualification under Article 62 was of permanent nature.
Thus Article 62 did not provide any period after which a person, who had been disqualified under the provision, could be eligible to contest elections of parliament, he said.
Former additional attorney general Tariq Khokhar also said that Mr Sharif had been disqualified for life since ineligibility for not being sadiq and ameen was forever.
But a senior lawyer, who did not want to be named, said that Article 62 was a qualifying provision and, when originally enacted in 1973, it had qualifications which were all objectively determinable. Later Gen Ziaul Haq brought in nebulous qualifications in Article 62, which were open-ended and highly subjective. No one has articulated its limitations better than Justice Asif Saeed Khosa who rightly observed in one of the cases that no one should be disqualified on that basis.
The provision was largely dormant till it was dusted and brought out by Iftikhar Chaudhry and used to knock out parliamentarians, he said, adding that even Justice Chaudhry did not disqualify anyone directly, except in the dual nationality cases and that too on the basis of admissions.
But when people were disqualified in almost every such case, it was later observed that the disqualification was for life, he said, adding that was the law for the moment.
The lawyer also recalled that petitions were pending in the apex court to determine whether disqualification under Article 62(1)(f) was for the remaining term or perpetual.
Published in Dawn, July 29th, 2017