The disqualification of former prime minister Nawaz Sharif by the Supreme Court to be a member of the parliament on July 28 has generated a debate whether his disqualification under Article 62 (1)(f) of the Constitution of Pakistan has put permanent seal on his parliamentary career and rendered him permanently disqualified from becoming a parliamentarian.
As Article 62 (1)(f) was introduced to the Constitution by former military dictator late General Ziaul Haq, it has brought into focus the amendments made in the Constitution during Zia era introducing several qualifications for the parliamentarians, which were not available in the original Constitution of 1973.
In the Constitution, originally Article 62 (1) had four clauses related to qualification required for a person to be elected as member of the parliament. Subsequently, through Presidential Order No. 14 of 1985 the original Article 62 was substituted with the present one with several inclusions mostly related to Islamic injunctions.
Some of the clauses of the existing Article 62, which were not present in the original article, are: “(d) he is of good character and is not commonly known as one who violates Islamic injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstain from major sins; (f) he is sagacious, righteous, non- profligate, honest and Ameen, there being no declaration to the contrary by a court of law; and (g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.”
The words “there being no declaration to the contrary by a court of law” were not given in Article 62 (1)(f) when it was introduced in 1985 and were subsequently inserted in this article through the Constitution (Eighteenth Amendment) Act, 2010.
Ever since its introduction several persons were disqualified under Article 62 (1)(f) of the Constitution and several cases have come up before the superior courts regarding its interpretation. Perhaps all the cases before the Supreme Court regarding this Article had either originated out of judgments delivered by election tribunals or judgments delivered by the high courts.
While time period is given for barring a person from becoming a parliamentarian disqualified under different clauses of Article 63 of the Constitution, no such time duration is given in the Constitution if a person is disqualified under Article 62 (1)(f). Due to the same reason a debate is going on whether Nawaz Sharif is being disqualified for life or he would be eligible after certain years.
The Supreme Court in some of its judgments has ruled that disqualification under Article 62 (1)(f) is a lifetime disqualification which meant that once a person is declared not honest, which is in case of Nawaz Sharif, it will render him disqualified from becoming a parliamentarian for rest of his or her life.
The apex court in one of the cases (Abdul Ghafoor Lehri Vs Returning Officer, PB-29, Naseerabad-II and other reported as 2013-SCMR-1271) has ruled that disqualification of a person under Article 62 (1)(f) of the Constitution would not end with passage of certain time. In that case the appellant Ghafoor Lehri’s nomination papers were rejected by an election tribunal as the declaration he had made regarding his educational qualification in 2013 elections were different from the one he had given in 2002 elections.
The bench headed by then chief justice Iftikhar Mohammad Chaudhry had ruled that the appellant had failed to meet the criteria set out for proposed candidates under Article 62(1)(d) & (f) of the Constitution and sub-sections (d), (e), (f) and (g) of Section 99 of the Representation of People Act, 1976.
“It may be noted that under Article 63 of the Constitution of the Islamic Republic of Pakistan there are certain disqualifications which are of temporary nature and a person disqualified under Article 63 can become qualified after lapse of certain period as mentioned therein, whereas, the requirement of Article 62 are of permanent nature and a person has to fulfill certain qualifications/conditions to become eligible to be elected or chosen as a member of Majlis-e-Shoora (parliament), otherwise, he is not eligible to be a member of Majlis-e-Shoora (parliament).”
“For this reason alone, Article 62 does not provide any period after which a person, who was declared disqualified under the said Article, can be eligible to contest the elections of the parliament. In such view of the matter we hold that a person who is not qualified under Article 62(1)(f) cannot become qualified by efflux of time,” the bench had ruled.
Similarly, in another case titled Allah Dino Khan Bhayo versus Election Commission of Pakistan, Islamabad, and others in Civil Petition No.1033 of 2013, the apex court had delivered a judgment on July 9, 2013.
In that verdict, the Supreme Court had ruled: “In order to contest the elections of the parliament or to the provincial assembly or be a member thereof a person must possesses the qualification as enumerated in Article 62 of the Constitution and not suffer from the disqualification as mentioned in Article 63 of the Constitution. The provisions of the said Articles when examined in the light of the judgment of this Court referred to and reproduced herein above reveal that certain disqualifications are removed by the afflux of time e.g. disqualification on account of conviction or removal from service.”
“Similarly, the qualifications can be acquired by some future act of the candidate e.g. by acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution,” the bench ruled, adding “However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same.”
“Consequently, if a person is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever,” the bench had ruled.
Some of the experts believe that unless any ruling is given by the apex court contrary to the existing judgments or any amendment is made in the Constitution, Nawaz Sharif is not qualified to contest any future general elections. They believe that he should file a review petition and shall request for constituting a larger bench for clarifying different points specially whether non-mentioning in the nomination papers of a salary he had not received amounted to a misdeclaration under the Representation of Peoples Act, which could render him disqualified under Article 62 (1) (A) of the Constitution.
Published in Dawn, July 31st, 2017