New legislation poised to draw judicial scrutiny

Lawyers unsure if act of parliament can amend Article 62(1)(f)

ISLAMABAD:

The proposed law for limiting a five-year disqualification period under Article 62(1)(f) might have faced strict judicial review by one section of the Supreme Court judges – led by Chief Justice of Pakistan Umar Ata Bandial – which had been expressing critical views on crucial legislations related to different matters for the last couple of years.

The Senate has passed a bill amending Section 232 in the Elections Act 2017 for limiting the disqualification period to five years under Article 62(1)(f).

The lawyers are divided as to whether or not the disqualification period could be limited through an act of parliament. One section of the lawyers says that a constitutional amendment is required to limit the disqualification under Article 62(1)(f).

They wonder how the Supreme Court larger bench’s judgment can be ended wherein it was held that disqualification under Article 62(1)(f) of the Constitution would be for life.

CJ Bandial had authored the ruling that had justified permanent disqualification of parliamentarians under the constitutional provision.

Instead of referring the matter to parliament to take a final decision on the duration of disqualification, the court comprehensively discussed the importance of Article 62(1)(f).

The verdict read that Article 62(1)(f) of the Constitution imposed Islamic ethical conditions for the eligibility of a candidate for the election to parliament.

However, these conditions were made applicable to both Muslim as well as non-Muslim candidates for parliamentary membership.

The court also reproduced the current code of conduct of the parliamentarians of the UK to assert the conditions of eligibility.

It also ruled that the same constitutional provision was endorsed by the 18th Amendment, wherein several adjustments were made that if the declaration by the court had attained finality, the embargo under Article 62(1)(f) of the Constitution acquired 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,” the verdict read.

Justifying lifetime disqualification, Justice Bandial further noted that a candidate for election, who had committed misconduct falling within the terms of Article 62(1)(f) of the Constitution, had on the Islamic and also universal criteria of honesty, integrity and probity, rendered themselves unfit to hold public office.

Now it will be interesting to see whether or not the section of the SC judges, led by CJP Bandial, will endorse the proposed law, which will ultimately end the lifetime disqualification of former premier Nawaz Sharif and senior political leader Jahangir Tareen.

Former Supreme Court Bar Association (SCBA) president Ahsan Bhoon had moved a constitution petition against the lifetime disqualification of lawmakers under Article 62(1)(f).

However, CJP Bandial has yet to entertain that petition.

A lawyer predicts that the proposed law will face strong resistance from the section of the SC judges led by the chief justice.

He says that the section reflects the old judicial mindset, which always gave a tough time to politicians in the apex court.

“That same section of [SC] judges question the legislative competence of parliamentarians on different subjects,” he adds.

The other section of the judges within the SC that is not on the driving seat since former CJP Mian Saqib Nisar’s era has always thrown its weight behind parliamentary legislation on every matter.

They also have critical views about exercising of quo warranto jurisdiction for the disqualification of political leaders under Article 62(1)(f) of the Constitution.

Unfortunately, these judges are not being accommodated in the special benches, which are examining the legislations carried out by the present parliament on the internal working of the top court through the Supreme Court (Practice and Procedure Act 2023) as well as Supreme Court (Review of Judgements and Orders 2023).

It was also witnessed in the National Accountability Ordinance (NAO) amendments case hearing, wherein Justice Syed Mansoor Ali Shah had a different opinion but his written order was yet to be issued.

The lawyers regret that the jurisprudence of one mindset of judges is dominant since the Panamagate case.

Therefore, they demand the constitution of a full court to hear every politically sensitive matter.

They expect that there will be “changed” SC after the retirement of CJP Bandial.
It will be interesting to see how the Pakistan Democratic Movement (PDM) government will secure important legislation on different matters until CJP Bandial’s retirement.

Advocate Abdul Moiz Jafferi believes that disqualification clarification is a necessary structuring of the vagueness in the law.

He adds that this law allows differing amounts of disqualification periods for different articles.

However, Jafferi says this particular amendment will clash with the very piety laced decision authored by Justice Bandial that declared these disqualifications to be for life.

“Where a reasoned order has been passed by the Supreme Court, such clarification amendments can be seen to be the legislature sitting in appeal of the top court’s decisions and hence liable to be struck down,” the lawyer adds.
Jafferi continues that the current extent of fractures in our court, this might not be an exercisable option for interested judges.

The lawyer also says that he does not think they need any constitutional amendment as the Constitution was vague in the first place and that is how the court stepped into the matter.

“However, now that the court has stepped in, it would have to be seen whether the SC would consider this to be an affront to a standing judgment,” Jafferi adds.
The lawyer says that would require an understanding of whether or not the CJP is currently strong enough to take up that challenge; and whether or not he even wants to hold the same view.