Justice Afridi dissents on review of lifetime disqualification

Says wrong done to intervener should not serve as the basis for rendering the relevant article redundant

ISLAMABAD:

Justice Yahya Afridi has expressed serious reservations regarding the revisiting of the Supreme Court's earlier judgment on the imposition of lifetime disqualification of lawmakers under Article 62(1)(f) of the Constitution.

The jurist stressed that the wrong done to an intervener should not serve as the basis for rendering the article redundant. He highlighted the importance of the original jurisdiction of Article 184(3) of the Constitution, stressing that the court should exercise caution, particularly in political matters.

His dissenting opinion comes amidst deliberations on a case where the judgment (Samiullah Baloch), has prescribed a lifelong ban for the lawmakers disqualified under Article 62(1)(f) of the Constitution.

“The original jurisdiction of Article 184(3) of the Constitution is an extraordinary jurisdiction not usually seen in other Constitutions, vesting this Court with authority to come to the rescue of the poor and the needy in matters of public importance involving the enforcement of the Fundamental Rights enshrined in the Constitution,” the dissenting note read.

Justice Afridi highlighted that while exercising its original jurisdiction under Article 184(3) of the Constitution, the SC ought to have been judicially cautious, not to meddle in political matters, more so, when its declaration would lead a person disqualified by a solitary declaration without an opportunity of legal redressal.

“However, I have no manner of doubt that the wrong done to the intervener should not be made basis for rendering Article 62(1)(f) of the Constitution to be redundant.”

Justice Afridi said that overruling a decision on a point of law should not appear to be a game of numbers in favour of the ruling bench, and all efforts should be made to conserve the question already decided and settled by a court unless there is a glaring error in the judgment under review.

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"Stare decisis requires judges to give “sober second thought” to overruling precedent irrespective of the reasoning behind the decision. In all fairness, even if the Court disagrees with the reasoning rendered in the Sami Ullah Baloch case (supra), I find that it would not be legally proper to discuss and overrule the same, when the conclusion drawn in the said judgment is in consonance with the settled principles already interpreted by this Court in its prior precedents."

Justice Afridi said that the 18th Constitutional Amendment was a constitutional watershed in our democratic history; its constitutional, social, and economic impact on all spheres, including governance strategy and provincial autonomy, are reaching, not only for the changes it introduced but also for the fact that the same was brought with consensual support of all the major political parties.

Therefore, the amendments in the constitution that were introduced vide the 18th constitutional amendment must be not only carefully viewed, but also respectfully preserved, he stated.

He further pointed out that the 18th constitutional amendment introduced several changes to the Constitution. Among those most relevant to the present discussion, are that Articles 62 and 63 of the Constitution were entirely replaced.

Notably, the amendment in Article 62(1)(f) introduced the phrase “there being no declaration to the contrary by a court of law” but conspicuously no specific time limit was inserted therein. This deliberate and well-thought-out omission clearly reveals the intent of the Parliament to avoid giving a specific time duration for disqualification under Article 62(1)(f).

Justice Afridi said that simply because a different perspective could have been adopted is not sufficient ground to overturn the well-considered opinion of a five-member bench, arrived after solemn argument and mature deliberation on the issue at hand.

To disturb such a precedent, would disturb and undermine the most essential element of an orderly administration of justice – consistency and predictability of the law, he added.

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SC judge also said that the term, court of law, stated in Article 62(1)(f) refers to a Court established and exercising its jurisdiction under the law, as provided in Article 175 of the Constitution.

Thus, any finding passed by any court constituted under Article 175 of the Constitution amounting to a declaration that a person is not sagacious, righteous, non-profligate, honest and ameen, would render the said person disabled to be chosen or to remain a member of the parliament, till the time such declaration remains in the field, the note read.

"I have no manner of doubt that the lack of qualification/disqualification, as provided under Article 62(1)(f) is not only clearly live, but most certainly self-executory. In fact, declaring Article 62(1)(f) non-executory would most certainly render the very provision redundant, and that would be an affront to the most basic principles of interpretation of constitutional provisions."

Firstly, he noted, the legislature cannot reverse or set aside the judgment of the court, and the same remains binding notwithstanding legislative action.

Secondly, the legislature is, however, entitled to change, with retrospective effect, the law, which formed the basis of the judicial decision, and thereby, the conditions on which the decision of the court was based on are altered so fundamentally that the decision no longer remains applicable to the altered circumstances.

Finally, the vires of any such law can only be questioned on the ground that it offends any provision of the constitution or nullifies the same, and not that it nullifies the judgment of the court, he added.

"I would, in these circumstances, declare that: the conclusion drawn in the judgment of the Sami Ullah Baloch case (supra) is legally correct, as it is in consonance with the settled principles already interpreted by this Court in its prior precedents and clear parliamentary intent, and thus, need not be overruled; and that the lack of qualification/disqualification envisaged under Article 62(1)(f) of the Constitution only renders a person disabled to be chosen or to remain a member of the Parliament, till the adverse declaration remains in the field, and is thus, not permanent,” he stated.