62(1)(f): SC Judgment a ‘New Window’

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Hafiz Ahsaan Ahmad Khokhar

The Supreme Court through the present judgment has not only decided the constitutional questions relating to 62(1)(f) of the Constitution with reference to the disqualification period but also admitted the legislative competence of Parliament and elaborately overruled its earlier principles laid down in Samiulla Balouch case in 2018 regarding concept of permanent court declaration, with their further explanation that the SC is only there to interpret the constitution and it should not assume the role of reading into or rewriting of the Constitution.
In the two previous Constitutions (1956, 1962), as well as in the current original one 1973 Constitution, the provisions governing the qualifications and disqualifications of parliamentarians were historically ascertainable, objective, and contained succinct language that primarily addressed the age, solvency, citizenship, and mental capacity of the individual in question. However, on March 2, 1985, General Ziaul Haq issued the Revival of Constitution of 1973 Order (RCO), amending 67 clauses and sections out of the 280 articles of the Constitution. It represented the biggest shift in Pakistani history in a single blow which included the addition of five new clauses to Article 62 and twelve new clauses to Article 63. These amendments added new requirements regarding the applicant’s reputation and personal qualities, such as “good character,” “adequate knowledge of Islamic teachings,” “sagacious, righteous, and non-profligate and honest and ameen,” and the refusal to be convicted of a crime involving “moral turpitude.”
There is no question under law that the legislatures did not purposefully create any disqualification periods specified in Article 62 of the Constitution, with the exception of those outlined in Article 63(1)(g) and (h). Since 2008, Supreme Court has issued number of judgments on this subject such as PLD 2023 SC 42, 2023 SCMR 370, PLD 2020 SC 137, PLD 2015 SC 275, PLD 2020 SC 591, 2018 SCMR 2121, PLD 2018 SC 578, PLD 2018 SC 405, PLD 2016 SC 657, 2013 SCMR 1655, and PLD 2020 SC 591, each with a different interpretation of these provisions, particularly Article 62(1)(f) of the Constitution. Therefore, critics had the opportunity to point out that Article 62 has been a political victimization instrument. It was also not uncommon for opponents to utilize legal technicalities or arbitrary interpretations to single out and disqualify their competitors, giving rise to charges of utilizing the legal system for political purposes. Thus electoral process had become more complicated and occasionally un-cleared as a result of the interpretation and implementation of Article 62, which had given rise to legal disputes and judicial lawsuits.
With the backdrop, the Supreme Court assembled a larger bench with seven members in the eye of the 2024 general election to re-examine its earlier judgments and the new legislation introduced as Section 232 of the Election Act 2017 in order to address the anomalies of the previously referred judgments regarding the period of disqualification related to Article 62(1)(f) of the Constitution. The Attorney General of Pakistan and the Advocate Generals of each province and the Islamabad Capital Territory have testified before the bench on several occasions, supporting the validity and constitutionality of section 232(2) of the Elections Act, 2017. The present judgment has addressed seven areas of the constitutional principles, which are as follows,
Article 62(1)(f) of the Constitution is not self-executive because it does not, by itself, designate the court of law that will issue the declaration mentioned in it, nor does it outline any process for doing so or the duration of any disqualification that may result from it.
In order to comply with the requirements of the Fundamental Right to a Fair Trial and Due Process guaranteed by Article 10A of the Constitution, there is no law that specifies the procedure, process, or identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder.
The interpretation of Article 62(1)(f) of the Constitution, which amounts to reading into the Constitution and imposes a lifetime disqualification upon an individual through an implied declaration of a civil jurisdiction court while deciding upon certain civil rights and obligations of the parties, is outside the purview of the aforementioned Article. Abridgement of citizens’ Fundamental Right to run for office and vote for the candidate of their choice, as guaranteed by Article 17 of the Constitution, in the absence of reasonable limitations imposed by law, is another reason why this reading of the Constitution goes against the principle of harmonious interpretation of its provisions.
Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law. Article 62(1)(f) of the Constitution acts as a guidance for voters in exercising their right to vote and is on the same legal footing as Articles 62(1)(d), (e), and (g) until a law is passed to render its contents executory.
The position adopted in Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) is overruled because it reads the declaration of a civil jurisdiction court regarding the violation of specific rights and obligations as a statement mentioned in Article 62(1)(f) of the Constitution and renders it permanently disqualifying.
With the Elections (Amendment) Act, 2023, which was enacted on June 26, 2023, Section 232(2) was added to the Elections Act, 2017, providing a five-year period for disqualification resulting from any court judgement, order, or decree under Article 62(1)(f) of the Constitution. This declaration is also subject to due process of law. This clause is currently in effect, and there still are.
Thus, in light of this, it was necessary for the Supreme Court to take a balanced constitutional approach in order to preserve the integrity of the democratic process while guaranteeing that the requirements outlined in Article 62 are just, reasonable, and in accordance with the needs of modern Pakistani society. The Supreme Court has rightly held that SC should have refrained from reading into the Constitution on its own or offering differing views regarding the declaration of regret and disqualification, which has also come under heavy criticism. In addition, there have been voices calling for a review of the Supreme Court’s Saminulla Balouch PLD 2018 SC 405 ruling, which the SC has done so and made a harmonious interpretation of the Constitution, and rightly held that Article 62(1)(f) refers to a “declaration of a civil nature, which for the life of the declaration, disqualifies a person and strips him of his fundamental rights under Article 17 of the Constitution was not legal. The current ruling of the Supreme Court would significantly alter Pakistan’s political and constitutional concerns, would remove legal confusion and would provide new guidelines for a relationship that was formed as the triangle of power under the parliamentary system of government.
The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com