ISLAMABAD: The Supreme Court of Pakistan (SC) took notice on Monday of the discrepancy between the judicial decision on lifelong disqualification under Article 62 (1) (f) and the amendment made to the Election Act.
The apex court scheduled the hearing for January as it issued notices to the attorney general of Pakistan (AGP) and provincial advocate generals.
The court further referred the matter, pertaining to ascertain the time period for disqualification, to the judges’ committee to have it fixed before a larger bench for hearing.
The apex court’s notice came on a petition filed by a former MPA of the Pakistan Muslim League-Nawaz (PMLN), Shamona Badshah Qaisrani, who was disqualified for concealing assets in 2014.
During the hearing today, Justice Qazi Faez Isa observed that the SC had two opinions on lifetime disqualification. “Disqualification in NAB [National Accountability Bureau] cases appears to be strict. How long will the disqualification be in a murder case?” he questioned.
Justice Athar Minallah observed that the case was related to the 2018 elections, expressing concern over whether it was feasible to hear it now that the next general elections were right around the corner.
However, the judge later remarked that there was no uncertainly regarding the next elections, and anyone trying to encourage it will be in contempt of the apex court.
The court observed that the current matter will not be allowed to be used as a tool to delay the February 8, 2024 polls, urging for notices regarding the case to be published in two mainstream English dailies.
In 2018, in a landmark verdict, a five-judge bench of the SC had unanimously held that disqualification handed down under Article 62(1)(f) of the Constitution is for life.
Under Article 62(1)(f) of the Constitution of Pakistan, which sets the precondition for a member of parliament to be ‘sadiq and ameen’ (honest and righteous), former prime minister and PMLN chief Nawaz Sharif was disqualified by the SC bench on July 28, 2017, in references pertaining to the Panama Papers. Similarly, former Pakistan Tehreek-e-Insaf (PTI) leader Jahangir Tareen was disqualified by a separate bench of the apex court under the same provision.
Last year, legal experts had observed that it was interesting to note that a person who has committed a murder is allowed to contest the elections after a specific period of time, whereas, a lawmaker, who lies under oath, has been barred permanently.
In January 2022, legal eagles had raised objections that out of five, four judges, namely Saqib Nisar, Azmat Saeed Sheikh, Umar Ata Bandial and Ijaz ul Ahsan belonged from Punjab and also questioned the very nature of the bench that passed the landmark ruling. Justice Sajjad Ali Shah, who belongs to Sindh, was also part of that larger bench.
Interestingly, most of these judges were part of benches that issued rulings in high-profile cases.
In October 2018, the SC in PML-N leader Khawaja Asif’s case finally laid down an objective criterion to test the honesty of a lawmaker by declaring that Article 62(1)(f) could not be applied to every omission or non-disclosure of assets’.
Later, declaring that such disqualifications must be based on oral or documentary evidence and not presumptions, the court set aside the lifetime disqualification of PTI Balochistan chief Yar Muhammad Rind in a fake degree case.
In May, the apex court had reiterated that it was now a well-established principle that all non-disclosures or misdeclaration would not be sufficient enough to permanently disqualify a member of parliament or a candidate under Article 62(1)(f).
Justice Sayyed Mazahar Ali Akbar Naqvi, in an 11-page judgment, had stated: “The purpose and intention need to be seen behind the non-disclosure or misdeclaration. The returned candidate would be disqualified only if he/she has dishonestly acquired assets and is hiding them to derive certain benefits”.
The verdict was issued on a petition filed by politician, Shamona Badshah Qaisarani, who had been disqualified for a lifetime over non-disclosure of her agricultural property inherited from her parents in the nomination papers.
The court had said that it was the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not.
In view of the previous judgment, several lawyers had contended that Tareen could not be disqualified for life.
SC Judge Justice Qazi Faez Isa had also posed seven questions to determine the eligibility criteria for lawmakers.
