A five-member larger bench of the Supreme Court will start the process next week to determine whether a lawmaker disqualified under Article 62(1)(f) of the Constitution is disqualified from becoming a member of the parliament for life.
Article 62(1)(f), which sets the precondition for a member of parliament to be "sadiq and ameen" (honest and righteous), had provided the grounds for the disqualification of former prime miniser Nawaz Sharif from holding public office in the July 28, 2017, judgement on the Panama Papers case handed down by the apex court.
The bench headed by Chief Justice Mian Saqib Nisar will also include senior justices Sheikh Azmat Saeed, Umar Ata Bandial, Ijazul Ahsan and Sajjad Ali Shah.
It is pertinent to mention that four of the aforementioned judges, excluding Justice Sajjad Ali Shah, have given either observations or judgments in the disqualification cases of Nawaz Sharif and Pakistan Tehreek-i-Insaf (PTI) leaders Imran Khan and Jahangir Tareen.
Besides implementation of Article 62(1)(f), the larger bench will also address matters containing a number of constitutional questions that require answering.
Perpetual or temporary?
The disqualification of Sharif by the SC to be a member of the parliament generated a debate whether his disqualification under Article 62(1)(f) has put a permanent seal on his parliamentary career.
As Article 62(1)(f) was introduced to the Constitution by former military dictator late General Ziaul Haq, it 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, Dawn reported last year.
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.
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.
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 was going on whether Nawaz Sharif is disqualified for life or he would be eligible after certain years.
The Supreme Court in some of its judgments has ruled that disqualification under Article62 (1)(f) is a lifetime disqualification which meant that once a person is declared not honest, which is the case with 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.
The bench headed by then chief justice Iftikhar Mohammad Chaudhry had ruled 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.
“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 possess 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 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, Sharif is not qualified to contest any future general elections.