SC shows a change in approach
The Supreme Court led by Chief Justice of Pakistan Qazi Faez Isa is visibly changing the approach to adjudicate matters regarding disqualification of lawmakers under Articles 62 and 63.
Unlike the past, the SC is now showing more respect toward politicians and parliament. Majority of judges have already endorsed the Supreme Court (Practice and Procedure) Act, 2023 which regulates the discretionary powers of the chief justice.
Since the restoration of judges in March 2009, lawmakers faced tough judicial scrutiny when it came to examining their eligibility under Articles 62 and 63 of the Constitution.
Wherever the Constitution was silent, the Supreme Court evolved tough principles for politicians in the name of interpretation.
Same happened in two matters in which the SC declared that disqualification under Article 62 (1) (f) of the Constitution would be for life and a defecting lawmaker’s vote would not be counted under Article 63-A.
Several lawyers consider both the judgements as the worst in the recent past. They say that the Constitution is being re-written in the name of interpretation. Dozens of lawmakers were disqualified by the apex court on account of non-disclosure of assets, holding of fake degrees and dual nationalities.
former prime minister Nawaz Sharif and IPP chief Jahangir Tareen were disqualified under Article 62 (1) (f) of the Constitution.
In 2018, then chief justice Saqib Nisar constituted a five-member larger bench to examine whether or not disqualification under Article 62(1)(f) of the Constitution is for lifetime.
The Supreme Court held that if it declared that a lawmaker was not “Sadiq” and “Ameen—truthful and trustworthy—then he or she would be permanently disqualified from contesting the elections.
Justice Umar Ata Bandial had authored a 52-page ruling that justified permanent disqualification of parliamentarians under the constitutional provision.
Instead of referring the matter to parliament to take a final decision on the time duration of disqualification, the court comprehensively discussed the importance of Article 62(1)(f).
Then some legal experts objected to the makeup of the bench to hear the matter. Out of the five judges, four judges – Saqib Nisar, Azmat Saeed Sheikh, Umar Ata Bandial and Ijazul Ahsan – were from the province of Punjab.
Justice Sajjad Ali Shah, who belonged to Sindh, was also part of that larger bench. 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
However, it is being witnessed that former CJ Umar Ata Bandial himself departed from the lifetime disqualification jurisprudence.
In October 2018, the apex court in the Khawaja Asif case finally laid down an “objective criterion” to test the honesty of a lawmaker by declaring that the Article 62(1)(f) could not be applied to every omission or non-disclosure of assets.
In 2021, the apex court reiterated that it was now a well-settled principle that every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of parliament or a candidate under the Article 62 (1) (f) of the Constitution.
“The purpose and intention needs to be seen behind the non-disclosure or mis-declaration. The returned candidate would be disqualified only when he/she has dishonestly acquired assets and is hiding them to derive certain benefits,” said an 11-page judgment authored by Justice Sayyed Mazahar Ali Akbar Naqvi.
The verdict was issued on a petition filed by a politician, Shamona Badshah Qaisarani, who was disqualified for lifetime over non-disclosure of her agricultural property inherited from her parents in the nomination papers.
“If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate, then it would lead to termination of his candidature,” the judgement added. Interestingly, Justice Bandial who had authored lifetime disqualification, was also signatory to this judgement.