News Analysis |
The Supreme Court (SC) of Pakistan has reserved its verdict in the disqualification case under the Article 62(1)(f) of the Constitution. Previously the disqualification under the article was for a lifetime. The SC accepted the petitions of 17 former lawmakers who’ve been disqualified under the article and turned it to a case to decide the disqualification period. Former premier of Pakistan Nawaz Sharif was also disqualified under this article.
Article 62 of the constitution determines the qualification of a candidate and Article 63 determines the disqualification of a candidate for the legislative assemblies. After the 18th Amendment, the disqualification period under Article 63 is 5 years but the constitution is silent on the duration of disqualification under Article 62.
The future of PML-N is hanging from a thread. If Nawaz Sharif is disqualified for life, it would be a big blow for them in the 2018 general elections but political experts believe that PML-N is set to win the Senate elections.
The disqualification period under Article 62 is decided by convention and as of now, the decision of former Chief Justice Iftikhar Muhammad Chaudhry stands and the disqualification under Article 62 is for a life time. If the SC doesn’t make a decision to the contrary, the decision of the former chief justice will prevail in all the future cases of disqualification under Article 62.
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The present case is exclusively about the Article 62(1)(f) which puts the condition that a candidate for the legislative assembly should be ‘Sadiq and Ameen’. The case is being heard by a five member SC bench headed by Chief Justice (CJ) of Pakistan Mian Saqib Nisar and comprising of Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah.
The bench heard all the arguments from the petitioners till 8th February and decided that it will not hear anymore arguments from the petition’s counsel. The Attorney General (AG) Ashtar Ausaf was summoned to present his argument in today’s hearing. The chief justice asked the AG whether the declaration of honesty expires after a certain period of time to which he replied in negative.
Most countries allow candidates to participate in the elections again once they fulfill the requirements. Legal experts believe that same clauses can be introduced in Pakistan.
“If the time has not been determined for the disqualification, does it mean the subject has been disqualified for life?” Justice Nisar asked. AG Ausaf concluded his arguments by saying that “The Constitution does not determine the length of the disqualification period under Article 62(1)(f).” He also told that the court would have to look into the matter on a case to case basis.
The SC reserved the verdict after hearing Ausaf’s arguments but legal experts believe that the disqualification period will be decided individually for each petitioner since the constitution is silent on it. While it is the responsibility of the parliament to make the laws, it is the domain of the judiciary to interpret it and when the constitution is silent on a matter. The judiciary decides the case based on convention and gravity of the issue.
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Nawaz Sharif was earlier invited by the courts to become part of the proceedings since he has stakes in it but he refused on the grounds that his participation will add prejudice to the case. The judges who disqualified Nawaz in the 28th July decision were part of the bench deciding the duration of disqualification so he excused himself from it.
They will introduce an amendment to remove Article 62(1)(f) from the Constitution. If they do so, Nawaz will become eligible to become the PM of Pakistan for the fourth time and they’ll have a strong chance to win the 2018 general elections.
The court had earlier declared Article 62(1)(f) ambiguous after hearing arguments from the late renowned lawyer and human rights activists Asma Jahangir. It was also argued during the proceedings that lifetime disqualification is against the basic human rights of the citizens of Pakistan since everyone has the basic right to contest in an election and vote for whichever candidate they want to.
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Article 62(1)(f) puts the condition that a candidate should be honest. Legal experts argue that such clauses are present in the constitutions of almost every country of the world. The constitutions of UK, US, India and Australia are some of the few countries that disqualify candidates for failure of declaration of assets and possession of fake degrees. Almost all cases of disqualification under Article 62(1)(f) are related to these issues. A person representing an area should be of high moral character and be honest.
The disqualification period under Article 62 is decided by convention and as of now, the decision of former Chief Justice Iftikhar Muhammad Chaudhry stands and the disqualification under Article 62 is for a life time.
The disqualification period in other countries is limited though. A candidate can be disqualified for 5-10 years based on the Article under which they are disqualified. Most countries allow candidates to participate in the elections again once they fulfill the requirements. Legal experts believe that same clauses can be introduced in Pakistan but sometimes they can create complex situations when the dishonesty counts as fraud.
The future of ex-PM Nawaz Sharif is hanging from a thread. If Nawaz Sharif is disqualified for life, it would be a big blow for him and for his ability to become PM in future general elections beyond 2018. But political experts believe that PML-N is set to win the Senate elections. If they get a majority in the Senate, they are expected to introduce an amendment to remove Article 62(1)(f) from the Constitution. If they do so, Nawaz will become eligible to become the PM of Pakistan for the fourth time. As Talal Chaudhury said in a party meeting recently ‘PML-N will win but real winning is if we win with Nawaz Sharif as PM.’