Devenomising Article 62(1)(f) ….Mohsin Saleem Ullah

Earlier this month, the Supreme Court took up the matter to determine whether the disqualification for life under Article 62(1)(f) of the Constitution as decided earlier in the 2018 Samiullah Baloch case will prevail or the amendments made to the Elections Act 2017 in 2023 that reduced the ineligibility period to five years.

With elections just around the corner, the Supreme Court passed a landmark judgment by setting aside the precondition attached to Article 62(1)(f) for a parliament member to be “honest and righteous”, the same provision under which ex-PM Nawaz Sharif was disqualified by a five-judge SC bench in the Panama Papers case.

The latest SC ruling marked a departure from the top court’s previous position in the Samiullah Baloch case (2018), which had interpreted the provision to impose a lifetime disqualification, rendering the permanent incapacity of a candidate to contest the election, as it was an excessive or unreasonable curtailment of fundamental rights under Article 17(2) of the Constitution.

It is crucial to reflect on the origin of the issue, identify the responsible party for initially addressing it, and consider how to ensure a sustainable solution now that the situation has been resolved. While acknowledging the significance of this decision, we must glean key insights to comprehend the roles of our institutions.

Beginning with the Constitution, our supreme law derives its supremacy from being a product of the people’s representatives in parliament. It establishes a governance framework, delineating the rights of the people and the functions of institutions. Despite facing challenges such as PCOs and emergencies, the Constitution has demonstrated resilience and adaptability. The 18th constitutional amendment addressed ambiguities, strengthened obligations and refined roles, exemplified by the enhanced meaning of Article 6 and the elimination of the discretionary dissolution of the NA by the President.

A mere reading of Article 62(1)(f) explains that it is not a self-executory provision as it does not by itself specify the court of law that was to make the declaration mentioned therein nor does it provide for any procedure for making any period for disqualification incurred by such declaration. Likewise, no law provides for the procedure, process and identification of the court of law for making the declaration mentioned in Article 62(1)(f) and the duration of such a declaration, for disqualification, to meet the requirements of the fundamental right to a fair trial and due process guaranteed by Article 10A of the Constitution. However, the earlier judgment passed in the Samiullah Baloch case misinterpreted this provision. This gap, however, invited judicial intervention, particularly regarding the interpretation of lifetime disqualification. Had the parliament adequately addressed this issue, the need for judicial interpretation might not have arisen. While the Elections (Amendment) Act 2023 was a commendable effort, it was considered too little, too late.

The recent SC decision is commendable for providing a reasonable construction based on judicial restraint and acknowledging parliament’s intent to limit the disqualification period. It prompts a return to constitutional norms and an opportunity to establish a more robust legislative framework. Without an enforcement mechanism, arbitrary interpretation and biased application may persist, contradicting religious norms, principles of natural justice and constitutional rights. The responsibility lies with the parliament to enact a definite and reasonable law outlining the substance and procedure for determining a candidate’s standing under Article 62(1)(f).

While it’s reasonable to anticipate leaders maintaining a high standard of conduct, the moment the ‘requirements’ for qualification begin imposing personality traits grounded in subjective moral concepts, which can be interpreted divergently by individuals, they cease to serve their intended purpose. The law should not be tasked with determining, based on arbitrary criteria, who is deemed ‘morally deserving’ of leadership and consequently permitted to engage in the electoral process. Such judgments ought to be entrusted to the discernment of the voting citizenry.

Courtesy The Express Tribune, January 18th, 2024.