Belated SCBA challenge may bring lifeline to Nawaz, Tareen

Published January 28, 2022
This combination photo shows estranged PTI leader Jahangir Tareen (L) and former prime minister Nawaz Sharif (R). — DawnNewsTV/AP
This combination photo shows estranged PTI leader Jahangir Tareen (L) and former prime minister Nawaz Sharif (R). — DawnNewsTV/AP

ISLAMABAD: In a move that could impact the country’s political scene, one of Pakistan’s premier legal bodies has challenged — albeit belatedly — the Supreme Court’s rulings that curtailed the electoral careers of two key political leaders.

The wide-ranging petition filed by the Supreme Court Bar Association (SCBA) also seeks the declaration that Supreme Court proceedings under Article 184(3) or Article 199 of the Constitution do not constitute declarations by a court of law, as envisioned in Article 62(1)(f), since the affected parties have no recourse or right to appeal.

It is worth noting that the result of this petition can affect the outcome of SC verdicts disqualifying former prime minister and Pakistan Muslim League-Nawaz (PML-N) supreme leader Nawaz Sharif, as well as former Pakistan Tehreek-i-Insaf (PTI) leader Jahangir Tareen.

The two were disqualified as lawmakers in judgements rendered in the Panama Papers case on July 28, 2017, and the Hanif Abbasi case on Dec 15, 2017, respectively. However, the period of their disqualification was not specified.

Petition argues candidates have no forum to appeal apex court’s decisions

In the subsequent case of Sami Ullah Baloch in 2018, the apex court had imposed a lifetime ban while holding that the Islamic principles of ‘tauba’ (repentance) and ‘maghfirat’ (forgiveness) did not apply to such individuals “because higher standards are expected from persons aspiring to be members of parliament”.

Filed by SCBA President Mohammad Ahsan Bhoon, through his counsel Mansoor Usman Awan, the petition asks the apex court to rule that the declaration by a court of law under Article 62(1)(f) only applies to the election under question, and does not entail a perpetual or lifetime bar on contesting future elections.

The petition argues that the lack of clarity regarding the procedure for a declaration under Article 62(1)(f) continues to pose an obstacle to the constitutional protection to citizens under Article 17(2), which allows citizens to form or become a member of any political party.

The judgement restricted the electorate’s choice of candidates and eroded the electorate’s right to vote, which has been held to be a fundamental right by the Supreme Court, the petition maintained.

The excessively punitive and restraining interpretation of Article 62(1)(f) deprives potential candidates of their right to contest elections and form a government, even after rectification of the fault over which they were disqualified, it said.

The petition stressed the need to reconcile the jurisprudence of the Supreme Court to consider whether the denial of the right to appeal violated the fundamental rights of such persons, as well as their potential voters.

It said the apex court has identified certain due process protections afforded to a member of parliament, for a court or tribunal to make a declaration in terms of Article 62(1)(f) of the Constitution.

It maintained that in the absence of a right of appeal against a ruling given by the apex court under Article 184(3), no adequate remedy was available to such individuals, adding that the remedy of review under Article 188 was “neither adequate nor, by any stretch of imagination, can supplant or be a substitute for a right of appeal”.

“It may indeed be true that the legislature did not envisage an appeal in proceedings under Article 184(3), the petition reminded, adding SC judgements on the nature of a court under Article 62(1)(f) and the resultant jurisprudence that has been established, requires harmonisation.”

“More specifically, if the legislature intended that a court under Article 62(1)(f) provide a fair opportunity of vindication to a person and also that proceedings under Article 184(3) be conducted sans the right to an appeal, then the two cannot be reconciled in a single case and at the same forum,” the petition pleaded.

The petition pleaded that the apex court, while acting under Article 184(3), exercises extraordinary and original constitutional jurisdiction and does not act as a trial court, where the person against whom a declaration under Article 62(1)(f) is being sought was afforded the right to lead evidence, produce witnesses, cross-examine the other side’s witnesses and so on.

Therefore, the superior courts exercising jurisdiction under Article 199 do not qualify as the ‘courts of law’ who may give declarations under Article 62(1)(f), the petition states.

It becomes clear that for the disqualification to attain permanence, the declaration under Article 62(1)(f) by a court of law must be given after the recording of evidence and cannot be given in summary or inquisitorial proceedings, the petition concludes.

Published in Dawn, January 28th, 2022

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