ISLAMABAD:

Discrepancies have been found in excercising of quo warranto jurisdiction by the Supreme Court and high courts against lawmakers to examine their qualification after elections.

Under Article 62(1)(f) of the constitution, a person cannot be qualified as a member of the national or provincial legislatures if he is not ‘Sadiq and Ameen’ – truthful and trustworthy. Some provisions of Article 62 of the constitution were introduced into the constitution by military dictator General Ziaul Haq.

Six years ago, former chief justice of Pakistan Asif Khosa, while hearing the Ishaq Khan Khakwani case, described the words ‘Sadiq’ and ‘Ameen’ as obscure and impracticable. He also talked about the ‘nightmares of interpretation and application’ that they involved. However, the same judge in the Panamagate case judgment on April 20, 2017 noted that these provisions have not been undone by the popularly elected parliaments in the last many decades.

Khosa further observed that as long as the said provisions are a part of the Constitution, the courts are obliged not only to decide matters according to the same but also to enforce them whenever called upon to do so. He held that provisions of Articles 62 and 63 of the constitution apply to a person’s public conduct – that affects others – rather than his private conduct not affecting generality of the populace.

However, his interpretation was not followed by majority judges in Panamagate case. Although, these constitution provisions were introduced during General Zia’s regime, the superior courts have shown restraint in disqualifying lawmakers on the basis of these two terms for more than two decades.

Soon after his restoration in March 2009, ex CJP Iftikhar Muhammad Chaudhry while enforcing Articles 62 and 63, started to disqualify lawmakers by excercising suo motu jurisdiction. Dozens of lawmakers were disqualified by the superior courts on the basis of fake degrees, dual nationalities and concealment of assets during his tenure as CJP. In the meanwhile, the Supreme Court July 28, 2017 judgment in Panamagate tightened scrutiny regarding the asset details of parliamentarians and now any parliamentarian can be disqualified on the basis of concealment of assets anytime by the superior courts under Articles 184 (3) and 199 of the constitution.

Justice retired Sheikh Azmat Saeed, who was part of Panama bench noted that a plain reading of Article 62(1)(f) of the constitution reveals that in order to be a Member of Majlis-e-Shoora (Parliament), the person must be, inter alia, sagacious, righteous, non-profligate, honest, and ameen. However, if there is a declaration by a Court of Law to the contrary i.e. he is not sagacious or righteous or non-profligate, honest, and ameen then such person shall not be qualified to be a Member of Majlis-e-Shoora (Parliament).

Justice Saeed observed that a declaration by the Court of Law would mean a conclusive finding: “Obviously, such finding would be with regard to a list before the Court, arising out of the violation of a law or non-fulfillment of a legal obligation. It is clear and obvious that lack of qualifications in terms of Article 62(1)(f) of the Constitution is the effect of a declaration by a Court of Law to the contrary, which is the cause. The obvious, legal and logical conclusion would be as long as the cause i.e. the declaration of a Court of Law holds the field, its effect i.e. the lack of qualification shall also prevail. This appears to be the only possible interpretation of Article 62(1)(f) of the constitution.”

Expansion of jurisdiction

Azmat Saeed Sheikh expanded his jurisdiction and held that it can initiate suo motu proceedings to examine the qualification of lawmakers. "We cannot abdicate our responsibility by brushing the issues floating on the surface under the carpet. Hence, we have no other option but to convert the instant proceedings into suo motu proceedings under Article 184(3) of the constitution so as to examine the cases of the parties on the basis of the material available on record so as to examine the Order of the Election Commission of Pakistan (ECP) dated June 20, 2017 by determining whether Bhatti was…disqualified or not qualified for being a member of the provincial assembly under the constitution,” states the 31-page judgment, authored by Justice Sheikh in Shaukat Bhatti case.

In an another matter, Sheikh observed that allowing a disqualified person become member of parliament or provincial assemblies would be considered as the apex court’s failure to protect and preserve the constitution. “Even where a matter comes before this court regarding the qualification or disqualification of a Member of the Majlis-e-Shoora or the Provincial Assemblies otherwise by way of proceedings other than under Article 184(3) of the constitution, this court not only has the jurisdiction to convert such proceedings to proceedings under Article 184(3) of the constitution but is bound to do so, as to permit an unqualified or disqualified person to continue to defile and desecrate the Majlis-eShoora or the Provincial Assemblies and masqulate as a chosen representative of the people would amount to frustrating the constitutional provisions.

"In such an eventuality, if this court looks the other way, it would perhaps constitute a failure to protect and preserve the Constitution,” said Justice Sheikh Azmat Saeed while authoring the detailed judgment regarding the disqualification of Pakistan Tehreek-e-Insaf (PTI) Member of Provincial Assembly (MPA) Abdul Munim in May 2018.

Lifetime disqualification

At the same time, the apex court held that if it declares that a lawmaker is not ‘Sadiq’ and ‘Ameen’ – truthful and trustworthy – under Article 62 (1) (f) of the constitution then he will be permanently disqualified to contest elections.

“We are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect,” said the Supreme Court judgment. The 52-page verdict was authored by Justice Umar Ata Bandial, who is also in line to eventually become chief justice of Pakistan (CJP) in 2022.

Instead of referring the matter to the parliament for taking a final decision on the time duration of disqualification, Justice Bandial comprehensively discussed the importance of Article 62 (1)(f) of the Constitution. His main reliance was on Article 2A of constitution as well as verses of the Holy Quran.

The verdict said that Article 62(1)(f) of the constitution imposes Islamic ethical conditions for eligibility of a candidate for election to the parliament but these are made applicable to both Muslim as well as non-Muslim candidates for parliamentary membership. "The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself. Therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) of the constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the constitution,” he said while justifying lifetime disqualification.

“A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-…he is sagacious, righteous and non-profligate, honest and Ameen, there being no declaration to the contrary by a court of law,” reads the Article 62(1)(f) of the Constitution.

Unlike legal experts’ predictions, Justice Bandial in his 52-page ruling justified the permanent disqualification of parliamentarians under the said constitutional provision. Instead of referring the matter to the parliament for taking a final decision on the time duration of disqualification, the court comprehensively discussed the importance of Article 62 (1)(f) of the constitution. His main reliance is on Article 2A of constitution as well as verses of the Holy Quran.

The verdict said that Article 62(1)(f) of the constitution imposes Islamic ethical conditions for eligibility of a candidate for election to the parliament but these are made applicable to both Muslim as well as non-Muslim candidates for parliamentary membership. The court also reproduced current code of conduct of the members of United Kingdom. Its judgment stated that the universality of standards of honourable conduct in public life in the contemporary democratic world, irrespective of faith or culture, makes it plausible that firstly, the conditions of eligibility for election under Article 62(1)(f) of the constitution are made applicable to all candidates for the parliament including non-Muslim candidates; and secondly, that these conditions have been retained by the elected parliament in the 18th Constitutional Amendment.

The court said the same constitutional provision was endorsed by 18th Amendment, wherein several adjustments were made that if the declaration by the court has attained finality, the embargo under Article 62(1)(f) of the constitution acquires permanent effect. “A court of law does not issue a declaration that offends mere sentiments or sensibilities. Consequently, a valid declaration by the court would involve the breach of a legal duty or obligation owed by the candidate for election to another person or the violation of the latter’s legal right or privilege”

Justifying lifetime disqualification, Justice Bandial said a candidate for election who has committed misconduct falling within the terms of Article 62(1)(f) of the Constitution, has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office. Both Pakistan Muslim League-Nawaz (PML-N) chief Nawaz Sharif and PTI leader Jahangir Khan Tareen have been disqualified for a lifetime on the basis of this ruling.

However, the verdict is being criticised by one section of lawyers due to different reasons. Firstly, they are objecting to the constitution of the bench to hear such an important issue. Out of the five, four judges namely Saqib Nisar, Azmat Saeed Sheikh, Umar Ata Bandial and Ijaz ul Ahsan) are from the province of Punjab. Justice Sajjad Ali Shah who belongs to Sindh, was also part of that larger bench which declared lifetime disqualification of lawmakers. Interestingly, most of these judges were also part of the benches which issued rulings in high profile cases relating to the Panama Papers, The Elections Act 2017, and the Hanif Abbasi case. The legal experts believe that such matters should either be fixed before a full court, or if the CJP constitutes larger benches, proper representation of each province should be ensured to remove any negative perception. That ruling has further tightened the eligibility criteria for lawmakers.

Lawyers are wondering if a fair opportunity and adequate remedy under relief is available to candidates. There is no chance of appeal in such matters and the review has a very limited scope. Former CJP Mian Saqib Nisar himself allowed former MPA Haji Nasir – who was disqualified under Article 62 (1) (f) of the constitution – to contest local bodies election.

Ajmal Asif and Zafarullah Dandla cases, in which the SC had allowed them to contest the election despite their being disqualified under Article 62 (1) (f) of the Constitution. Legal experts believe it is time for political parties to learn from their mistakes and bring effective legislation to remove permanent bar on politicians under Article 62 (1)(f) of the constitution.

Interestingly, a murderer can contest elections after a specific time, but a lawmaker, who lies under oath, has been barred permanently. In October 2018, the apex court in Khawaja Asif case finally laid down an ‘objective criterion’ to test the honesty of a lawmaker by declaring that Article 62(1)(f) could not be applied to every omission or non-disclosure of assets. Later, the court set aside the lifetime disqualification of PTI Balochistan chief Yar Muhammad Rind in the fake degree case, declaring that such disqualifications must be based on oral or documentary evidences and not presumptions.

SC in the Khawaja Asif case judgment held that mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings.

Last year, the top court ruled that a returning officer (RO) – an official responsible for overseeing elections in one or more constituencies – cannot disqualify a lawmaker for the lifetime under Article 62(1) (f) of the constitution. "Since the forum of the returning officer lacks the attributes of a court of law therefore the electoral disqualification imposed on the review petition under Article 62(1)(f) of the Constitution ceased to be effective after the 18th Amendment,” said an eight-page judgment authored by Justice Umar Ata Bandial while hearing review petition filed by a disqualified lawmaker Allah Dino Khan Bhayo.

Conflicting judgments

On concealing assets, the top court in the Iftikhar Cheema case had only ordered de-seating. Cheema contested the by-election and became member of the National Assembly again. However, in a separate case, the Supreme Court disqualified Rai Hassan Nawaz under Article 62(1)(f) which was apparently a lifelong ineligibility, he added.

The situation with respect to cases of fake degrees was similar. The court allowed Jamshaid Dasti to contest election again but disqualified Rizwan Gill, Samina Khawar Hayat and Amir Yar under Article 62(1)(f).

A person convicted in a criminal case would be barred for five years after imprisonment; one convicted under the NAB Ordinance would be disqualified for 10 years after his release; and in a contempt case, an individual would be disqualified for five years. However, it is interesting to note that a person giving a false statement before court or concealing his assets’ details in nomination papers would be disqualified for the rest of his life.

The apex court jurisdiction on election matters is inconsistent, confusing and conflicting. Since 2009, the apex court has initiated a process to disqualify lawmakers by exercising the jurisdiction of quo warranto.

When the apex court held that an RO could not disqualify any lawmaker under Article 62 (1) (f) through summary trial and without recording evidence then how the superior courts could do the same by exercising quo warranto. However, it is established that superior courts could disqualify a lawmaker on admitted facts in writ jurisdiction.

In the presence of Article 225 of constitution, the superior courts must show restraint to examine the eligibility of any lawmaker in quo warranto jurisdiction. Article 225 says that all elections matters will be decided by the tribunal.

Former additional attorney general Waqar Ahmad Rana believes that superior courts must excercise its public interest jurisdiction sparingly in election matters. “Let other democratic norms be flourished in the country,” he adds. Justice Qazi Faez Isa of the Supreme Court also raised serious questions over the jurisprudence evolved in view of Panama Papers verdict regarding the disqualification of lawmakers, calling upon the apex court to make every effort to dispel any impression that different persons are treated differently.

“Justice must not only be done but be seen to be done as well. Every endeavour, therefore, should be made to resolve the prevailing legal uncertainty. The eligibility of members of parliament should be decided in accordance with one single and definite measure,” says Justice Isa in his 27-page dissent note in Sheikh Rasheed disqualification case. He also raised seven questions while recommending that a full court settle uniform principles for the applicability of Article 62(1)(f) of the constitution.

Justice Isa believes that the court in the Panama Papers case clearly applied the strict liability principle but it did not follow the strict liability rule in PTI chief Imran Khan’s disqualification case.

 

Seven questions

Justice Isa raised seven of the following questions for adjudication before larger bench:

1. Does every nondisclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?
2. If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?
3. Does Article 225 of the Constitution exclude the application of Article 184(3) of the Constitution to election disputes?
4. If the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a Fundamental Right and if so can it be determined under Article 184(3) of the Constitution?
5. If the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3) of the Constitution?
6. Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)?
7. If a candidate is disqualified on account of nondisclosure or misdeclaration does such disqualification subsist only till the next elections or is it permanent?