‘Draconian’ law

Published October 6, 2022

THE debate over what it means to be ‘sadiq’ and ‘ameen’ has reignited after the incumbent Supreme Court chief justice recently described Article 62(1)(f) of the Constitution as “draconian”. CJ Umar Ata Bandial made the observation while examining a petition moved by former PTI senator Faisal Vawda, who was disqualified for life earlier this year by the Election Commission. The ECP had deemed him “dishonest” after finding that Mr Vawda had concealed his dual nationality at the time he filed his nomination papers for a National Assembly seat before the 2018 elections. Mr Vawda has appealed to the Supreme Court to set aside the “lifetime” bit of the ECP’s disqualification ruling. He has argued that the court should consider mens rea — ie, a lack of criminal intent — in his failure to disclose his US nationality. He has further argued that since the Supreme Court has already ruled that the ECP cannot be considered a court of law, the latter cannot make a declaration to disqualify him under Article 62(1)(f).

While the Supreme Court deliberates whether Mr Vawda can be considered honest or not, it is worth remembering that he is not the only lawmaker facing a lifetime ban from politics under the law. In the recent past, several other politicians — most notably Nawaz Sharif and Jahangir Tareen — have been handed similar sentences. It is also worth remembering that while Article 62(1)(f) never did mention the length of disqualification for dishonesty; it was a five-member bench of the apex court, of which the current chief justice was a part, which unanimously ruled in 2018 that such ineligibility should be considered for life. The Supreme Court Bar Association disagreed and appealed to the apex court earlier this year against a lifetime ban. However, that petition is still pending adjudication.

It is hoped that the chief justice is now looking at Article 62(1)(f) from a fresh perspective. He will find many good reasons to do so. Defining “sagacious, righteous, non-profligate, honest and ameen” in a manner that is universally acceptable — as any law should be — has so far stumped some of the finest legal minds of our age. Nonetheless, that has not prevented the law from being used as a political death sentence handed down to various leaders. Some reconsideration, therefore, of the manner of its application is in order. Ultimately, however, the responsibility rests with parliament to replace the nebulous requirements laid out in Article 62(1)(f) with something more concrete and quantifiable. The Supreme Court had stated in 2018 when it held that disqualification was for life, that it was only interpreting the law as it was. Therefore, instead of repeatedly stumbling over the optics of what touching Article 62(1)(f) would look like, our lawmakers need to hold firm and make any reasonable changes required for the sake of the stability and continuity of the political order.

Published in Dawn, October 6th, 2022

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