Is the election ban perpetual or transient?

Initially, Article 62(1) didn't contain Islamised injunctions requiring elected parliamentarians to be sadiq and ameen

Rafae Saigal February 02, 2018
The writer, a lawyer, is currently practising taxation and constitutional law at a law firm based in Lahore

A larger five-member bench of the Supreme Court is currently hearing several civil appeals pertaining to the disqualification of elected parliamentarians, which have occurred owing to the contravention of provisions of the Constitution and election laws. In specificity, the question for determination is whether the bar to contest elections, by virtue of disqualification, is perpetual or for a specific time-period. The Supreme Court has also issued notices to Nawaz Sharif and Jahangir Khan Tareen whose cases fall under Article 62(1)(f) of the Constitution, and Section 99 of the Representation of the People’s Act of 1976 (ROPA). To recollect, Article 62(1)(f) and Section 99(1)(f) of ROPA hold certain pre-conditions for a person to be elected, or hold office: He is sagacious, righteous, non-profligate, honest and ameen.

Initially, Article 62(1) of the Constitution did not contain Islamised injunctions requiring elected parliamentarians to be sadiq and ameen. Former military dictator General Ziaul Haq introduced these constitutional amendments to Article 62(1) of the Constitution through a Presidential Order in 1985. Ever since the matter has been brought for adjudication before the superior courts, the length of disqualification has always been a cause for debate. A reference to the previous decisions of the Supreme Court with regard to the period of disqualification under Article 62(1)(f) and general election laws may provide some helpful insight.

In this respect, it was held in Muhammad Siddique Baloch vs Jahangir Khan Tareen (PLD 2016 SC 97) that the qualifications enumerated in Article 62 of the Constitution were a sine qua non for eligibility; a person who was untruthful, dishonest, or profligate had no place in discharging the noble task of lawmaking and administering the affairs of the state. It was observed that such faults in character could not simply be treated as transient, for the purpose of reposing the trust of the electorate and the Constitution. A three-member bench of the Supreme Court, in Abdul Ghafoor Lehri’s (2013 SCMR 1271) case, held that the disqualifications enumerated under Article 62 were of a permanent nature, and could not become qualified by the efflux of time.

Justice Azmat Saeed penned an opinion in Allah Dino Khan Bayo’s (2013 SCMR 1655) case, whilst observing that the framers of the Constitution did not prescribe any time period, or any act or omission whereby a disqualified person under Article 62(1)(f) may reacquire qualification in terms of Article 62; such absence of qualification would continue to “haunt” the disqualified person forever, it was held. Interestingly, Justice Azmat Saeed is also a member of the larger bench that will hear the civil appeals that are fixed for hearing later this week. In Sadiq Ali Memon’s case (2013 SCMR 1246), Justice Gulzar reiterated the findings of the Supreme Court in another 2007 case, asserting that once the disqualification had been “earned” by a candidate, in view of the provisions of the Constitution and the law, the same could not be removed by the passage of time. The three-member bench in Malik Umar Aslam’s case was also of the view that a disqualification on account of Article 62(1)(f) of the Constitution was perpetual, as a disqualified person had no right to represent the electorate of the country.

The former chief justice, Anwar Zaheer Jamali, however, expressed concern over how anyone could be disqualified permanently from participating in elections on the basis of Articles 62 and 63 of the Constitution. The former chief justice was of the view that people could reform themselves to be qualified under the provisions, after being disqualified at some point of time. The most recent view was delivered by the Supreme Court, in a bench headed by Chief Justice Saqib Nisar, regarding an election petition pertaining to the Multan Cantonment Board, wherein an appeal filed against the decision of an election tribunal was dismissed. The Supreme Court, in the same judgment, also upheld a lifetime ban against the appellant, who failed to disclose a bank account.

The current line of authority tends to incline in favour of a lifetime ban, which is in consonance with the prevailing legal view. Chief Justice Saqib Nisar and Justice Azmat Saeed have already, in their previous opinions, up held lifetime bans in cases of Article 62(1)(f) and Section 99 of the ROPA, albeit the former has commented on the lifetime ban being “debatable”.

Importantly, the aforementioned previous judgments rendered by the Supreme Court have all been delivered by two- or three-member benches. In consonance with the doctrine of precedent, however, any opinion of the larger five-member, currently constituted, will take precedence over the previous opinions of the Supreme Court. With the elections scheduled for the middle of July this year, even if the Supreme Court infers a modest one-year ban on a violation of Article 62(1)(f), the setback to Nawaz’s political career could be sizeable, given that his disqualification period runs from the 28th of July, 2017, and would be over well after the scheduled date of elections this year.

The proceedings have unfortunately only been convoyed with more controversy, with the recent decision of the Supreme Court in Nehal Hashmi’s case. Justice Azmat Saeed, in the latest hearing, opined that a dishonest person cannot be termed ‘honest’ after five days. Just yesterday, the Chief Justice observed, that parliament had no place for dishonest people. Sharif’s counsel is to argue, later this week, on the grounds whether a lifetime disqualification is violative of one’s fundamental rights. It is, nonetheless, to be seen whether the Supreme Court strays from a consistent and harmonious line of authority.

Published in The Express Tribune, February 2nd, 2018.

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