Apex court’s belated course correction

SC rolls back ‘anti-politician’ jurisprudence by overruling its earlier judgement

ISLAMABAD:

The Supreme Court led by Chief Justice of Pakistan Qazi Faez Isa has given another historic verdict by rolling back the “anti-politician” jurisprudence evolved in the recent past with regard to the qualification of lawmakers under Article 62(1)(f) of the Constitution.

Commenting on the verdict, Salahuddin Ahmed Advocate said the majority judgement also held that the courts could not use Article 62(1)(f) to disqualify politicians until parliament first passed a law declaring how “Sadiq and Ameen” criteria of Article 62(1)(f) is to be applied by courts.

Under Article 62(1)(f), 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 inserted into the Constitution by military dictator General Ziaul Haq.

Attorney General for Pakistan (AGP) Mansoor Awan said in view of the order, now the superior courts — the Supreme Court and the high courts — could not examine the qualifications of lawmakers by exercising quo warranto jurisdiction.

Discrepancies were being found in exercising of quo warranto jurisdiction by the Supreme Court and high courts against lawmakers to examine their qualification after elections.

Six years ago, former chief justice of Pakistan Asif Saeed 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 had not been undone by the popularly elected parliaments in the last many decades.

Justice Khosa had reproduced a judgment authored by Justice Isa while he served in the Balochistan High Court to apply Article 62 (1) (f) of the Constitution against former prime minister Nawaz Sharif.

Although these constitutional provisions were introduced during General Zia’s regime, the superior courts had shown restraint in disqualifying lawmakers on the basis of these two terms for more than two decades.

Soon after his restoration in March 2009, former CJP Iftikhar Muhammad Chaudhry while enforcing Articles 62 and 63, started to disqualify lawmakers by exercising 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 the CJP.

In the meanwhile, the Supreme Court’s July 28, 2017 judgment in the Panamagate case tightened scrutiny regarding the asset details of parliamentarians.

In view of the Panamagate jurisprudence, any parliamentarian could be disqualified on the basis of concealment of assets anytime under Articles 184 (3) and 199 of the Constitution.

Former SC judge Azmat Saeed Sheikh while authoring the judgement in the Shaukat Bhatti case expanded this jurisdiction and held that the SC could 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,” stated the 31-page judgment.

In another matter, Sheikh observed that allowing a disqualified person to become a 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 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 while authoring the detailed judgment regarding the disqualification of PTI provincial assembly lawmaker  Abdul Munim in May 2018.
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 a 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.
The situation with respect to cases of fake degrees was similar. The court allowed Jamshed 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 was inconsistent, confusing and conflicting. After 2009, it 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 the Constitution, the superior courts must show restraint to examine the eligibility of any lawmaker in quo warranto jurisdiction.

Article 225 says that all election matters will be decided by the tribunal.

Former additional attorney general Waqar Rana has said the SC short order is less than clear.

“If period of 5 years is the maximum period of disqualification then how can a 10-year disqualification be justified under NAB Ordinance? It is expected that the court will give clear reasons in the detailed judgement," he added.

Another former additional attorney general Tariq Mahmood Khokhar has said the Sami Ullah Baloch case was—to quote Abraham Lincoln--an astonisher in legal history.

“The decision was erroneous and reeked of bias. Its overruling was long overdue. The fault lies in our judicial system: it is replete with bending moments when we bend our jurisprudence to redefine justice to meet our extra-judicial goals," he added.