News Analysis: Will Supreme Court axe not fall on this legislation?

KARACHI: Law Minister Azam Nazeer Tarar has said that the SC’s 2018 five-member bench verdict that had decreed that disqualification under Article 62 (1)(f) of the Constitution was for life will not have a bearing on the disqualification clause in the Elections (Amendment) Bill 2023 passed by the Senate yesterday. Legal experts feel the amendment bill will breeze through parliament and there is little chance of the bill being struck down in court.

Talking to Geo’s Shahzad Iqbal in the show ‘Naya Pakistan’ on Friday, Tarar said that the provisions in the amendment granting requalification after five years under Article 62 had taken into account “the fundamental right to political activity”. On being asked if the current amendment went against the SC’s five-member bench interpretation, he said that “legislation falls under parliament, interpretation falls under the courts.” And that “the amendment specifies that it applies to instances where the Constitution is silent’’ [which it is in 62(10(f)]. Responding to whether the SC’s interpretation could be changed /overturned just by legislation, the minister said that many verdicts become redundant post-legislation.

According to Barrister Rida Hosain, “The first notable amendment [in the new bill] is that a disqualification under Article 62(1)(f) shall not exceed a period of five years from the declaration by a court.” She explains that the “Constitution is silent on the duration of a disqualification under Article 62(1)(f). Previously, the Supreme Court in the Sami Ullah Baloch judgment held that such a disqualification is for life.”

Hosain first lays out the law as it stands: “Under Article 63(1)(h) of the Constitution, a parliamentarian with a criminal conviction for an offence involving moral turpitude (carrying a sentence of at least two years) is subject to disqualification for five years after release. The courts have held that ‘moral turpitude’ can mean misrepresentation, breach of trust, misappropriation, forgery, cheating, and conduct which is against established judicial norms in a society.”

She says that “the bizarre effect of the law as it stood was that: a parliamentarian who was convicted for fraud or cheating would be disqualified for a period of five years after release. But a parliamentarian who was not ‘honest and ameen’ would be disqualified for life. The inherent unfairness was exacerbated by the courts arbitrary interpretation of what qualifies as ‘honest and ameen’.”

For Hosain, “There is a reasonable argument to be made that since the Constitution does not specify a time period for disqualification under Article 62(1)(f), such a lacuna can be fixed through the law.”

For lawyer Abdul Moiz Jaferii, “the disqualification clarification is a necessary structuring of the vagueness in the law which allowed differing amounts of disqualifications for different articles; however this particular amendment will clash with the very piety-laced decision authored by Justice Bandial as he then was who declared these disqualifications to be for life.”

Barrister Reza Ali calls the disqualification amendment a “deeming clause” that “creates a kind of legal fiction that supersedes any judgment in the field. Now, “despite any judgment to the contrary by the SC or the high courts, under articles 62 and 63 if there is a disqualification, it can only be for a period of five years. So the act seeks to nullify any specific disqualification that has been rendered subject to Article 62 and Article 63 by any court.”

For journalist and lawyer Muneeb Farooq, “this amendment will basically undo the lifetime disqualification under Article 62(1)(f ). The government has tried to circumvent the Supreme Court disqualification for life ruling in the Samiullah Baloch case authored by Justice Bandial before he became CJP.” Farooq says that the “important point is that a disqualification period is not mentioned in articles 62 and 63.”

How much of this amendment is person-specific, as has been alleged by members of the opposition? Does it grant Nawaz Sharif space to renegotiate an overturn of his lifetime disqualification? Per Muneeb Farooq, “If taken forward and if it’s not struck down via a challenge in the Supreme Court, the amendment can benefit anyone who is suffering from a lifetime disqualification under 62(1)(f).”

Jaferii says the amendment would affect Nawaz Sharif’s case but that “his disqualification for life would still have to be reviewed and overturned in the Supreme Court”. Reza Ali says that it is “no surprise that this is a Sharif-specific amendment that has been made.” He adds that in normal circumstances “in the presence of a fairly robust and hawkish judiciary these are amendments that are normally automatically challenged and their vires are examined. In the past such amendments have been struck down by the courts calling them unconstitutional. However, it seems this [current amendment law] will breeze through parliament and after the president gives his assent it appears this could lead to Nawaz Sharif’s disqualification being nullified.”

Jaferii thinks today’s higher judiciary issues may also pose a problem in striking down such an amendment attempt: “Where a reasoned order has been passed by the Supreme Court, such clarificatory amendments can be seen to be the legislature sitting in appeal of the Supreme Court’s decisions and hence liable to be struck down. With the current extent of fractures in our court, this might not be an exercisable option for interested judges.”

When asked for their opinion on the amendment relating to the ECP giving the election date (without conferring with the president), legal experts seem to find parliament a suitable forum to decide such matters by power of legislation. Barrister Rida Hosain explains thus: “The power to announce the election date for the general elections has been transferred to the Election Commission of Pakistan. This power previously rested with the president. In the recent detailed judgment on elections in Suo Moto Case No 1 of 2023 authored by Munib Akhar J, he states: ‘legislative competence would therefore be quite sufficient to confer on parliament to identify by statute the authority that is to appoint the date whether that be the commission or the president.’ It is clear that parliament has the legislative competence to determine which authority shall announce the date.” She does add though that “It is equally clear that any such power to announce the date must be exercised in accordance with the time frames identified in the Constitution.”

Explaining the genesis of the election date issue, Muneeb Farooq says that “this circles around to the time the president announced the date for the Punjab elections. The government’s argument was that the president did not have the authority to do so. And only had the authority in case of a general election. Somehow the SC upheld the position taken by the president. Now with this change in the Election Act, 2017 only the ECP gets to announce the election date in this instance; the president will have no role in it.”

“I think the idea of involving the governor or the president in the electoral process was a needless redundancy, conferring a majesty or authority to the office of governor and president at the cost of efficiency and expertise”, says Moiz Jaferii, adding that “supposedly ceremonial offices have repeatedly proven themselves unready to act impartially and are little else than colonial hangovers with pretty housing which costs us a few billion rupees a year in upkeep.”

Speaking to Naya Pakistan, the law minister had explained that: “the Constitution has in various instances specified [who gets to announce the election date] but there are instances that are not covered, something we had to face in the recent issue of election dates and the matter going to the courts eventually....So what we have done is that where the Constitution specifies who gives the election date that remains as is but where the Constitution is silent, that is where for clarity we have introduced this amendment.”