Disqualification riddle

The landmark decision by the Supreme Court to scrap the lifetime disqualification of parliamentarians will surely impact the political landscape. It has paved the way for PML-N supremo Nawaz Sharif and Istehkam-e-Pakistan leader Jahangir Tareen to stage a comeback in electoral politics. The 6-1 decision observed that it is against the principle of harmonious interpretation of the provisions of the Constitution to obstruct the right to contest elections, and vote, as it abridges the fundamental right of citizens as enshrined in Article 17 of the Constitution. It went on to say that in the absence of reasonable restrictions imposed by law, Article 62(1)(f) is not a self-executory provision and does not provide for any procedure for making, and specifying, any period for disqualification.

To the surprise of many jurisprudents, the apex court went back on its own 2018 judgment in the Samiullah Baloch case when it had ruled that disqualification handed down under Article 62(1)(f) was “permanent”. Probably this change of head and heart was made possible owing to a tailor-made legislation that was passed by the coalition PDM government last year by amending the Elections Act of 2017, wherein it was expressly stated that disqualification shall not be for more than five years. Thus, the top court simply sat in a judicial review, and confirmed the same, as many were sure of the outcome. This in a way was tantamount to putting the legislature at the vanguard of judiciary, and the rest was fait accompli.

The note of dissent was of Justice Yahya Afridi who begged to differ as his Brother Judges pronounced that “until a law was enacted to make its provision executory, Article 62(1)(f) stood on a similar footing as Article 62(1)(d)(e)(g) — which talks about the qualification of a lawmaker — and served as a guideline for voters in exercising their right to vote.” The court’s intention to clear the air before general elections in terms of disqualification riddle has, however, opened a new debate on the conformity of a constitutional provision vis-à-vis an act of parliament. The political intelligentsia and jurists will have to hold their brief.

Published in The Express Tribune, January 9^th, 2024.

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