News Analysis: Law alone won’t neutralise SC ruling, say experts

KARACHI: It may require a constitutional amendment to reverse the lifetime disqualification of politicians under Article 62(1)(f), and the Elections (Amendment) Bill 2023 passed by the National Assembly on Sunday may not suffice on its own to do so, say legal experts.

Responding to a question on Twitter, former president of the Sindh High Court Bar Association Barrister Salahuddin Ahmed says that while the “interpretation of [Articles 62 and 63 of the constitution] by the Supreme Court to hold lifetime disqualification was absurd...so long as the judgment is in field, it will need a constitutional amendment to change it.” He feels that the government may be looking to “have the law challenged in [the] SC before a larger bench which can overrule the earlier decision.” He further explains that “Parliament cannot simply overrule a court’s interpretation of [the] constitution as that would usurp judicial function. So it would need to amend [the] constitution to reach a different outcome.”

Lawyer Abdul Moiz Jaferii tells The News that the amended law [passed by the National Assembly] “does add clarity to what was previously a constitutional emptiness. It provides for a clear sanction which parliament has now legislated where there previously was none. Because the period of disqualification varied due to what was stated in the constitution and what was left unsaid, this is a clear step forward.”

However, things are not that simple, as evident by Salahuddin Ahmed’s analysis. Jaferii says that “The trouble is that there has already been a constitutional interpretation rendered by the Supreme Court regarding the consequences of not being sagacious and righteous. That piety-laced decision was rendered by the current chief justice in the midst of a hybrid push; he later called the same part of the constitution draconian when Faisal Vawda challenged it.”

Jaferii agrees that “with a Supreme Court interpretation of that particular constitutional position now in the field, either that decision needs to be undone or clarity must be added to the constitution and not simply to the law.”

Constitutional lawyer Aaminah Qadir says that “Principally, the lifetime ban is perhaps flawed. However, this does not lead to the conclusion that the courts decisions be overruled by bills in parliament. This greatly undermines the credibility of the apex court and also the separation of powers doctrine that is premised on the basis that each institution is supreme. This also leads to the conclusion that the amendment should come through the courts.”

Talking to Geo’s Shahzad Iqbal on Naya Pakistan on Sunday, PILDAT President Ahmed Bilal Mehboob says that, “while the lifetime disqualification if Nawaz Sharif and Jahangir Khan Tareen was wrong, if the Supreme Court gives a verdict its status becomes constitutional. So the lifetime disqualification has become a part of the constitution. Reversing it is not possible through a simple act of parliament; it needs a constitutional amendment”. He is of the opinion that the matter will end up in court -- “parliament passing a simple law cannot end the lifetime disqualification judgment; this law too will be scrapped in the Supreme Court”.

Barrister Rida Hosain is of the view that there are two ways to look at the pertaining situation: “In the Samiullah Baloch judgment, the Supreme Court held that since Article 62(1)(f) does not specify a time period for disqualification, the clear constitutional intent is that it should be permanent. One line of argument is that since the heart of this judgment was an interpretation of the constitution, it can only be undone through a constitutional amendment. This requires a two-thirds majority which the government does not have. On the flip side, there is an argument that the silence of the constitution can be addressed through an act of parliament. Once again, which argument prevails remains for the Supreme Court to decide.”

What then was the point of the National Assembly passing the amendment bill, if the bill will just end up in court? Moiz Jaferii says that “what is gained here is the clarity required for the Supreme Court to review and overturn the religiously rooted decision authored by Justice Bandial -- through legislation which the J Bandial court is currently examining the validity of”, adding that [the bill] “is an indication from parliament. And it is currently inconsistent with a Supreme Court declaration. The fact that the declaration is absurd makes little difference today, but this legal enunciation will greatly facilitate the review of the original decision which led us here in the first place.”

The process could be thus, per Jaferii: “if the currently suspended Supreme Court Practices and Procedure Bill/Act eventually becomes law, and if the Supreme Court Review Act survives the current challenge sub judice in the Supreme Court, this law could pave the way for a review or appellate decision which was more harmonious with the now expressed parliamentary intent”.

For Aaminah Qadir the government “is simply looking to correct the mistakes they’ve [historically] made: trying to add clarity to the loopholes in the constitution. But this raises many legal questions. You cannot amend the constitution through various legislations; you cannot pass a bill to interpret what the constitution is saying. Now, the correct way -- legally speaking -- to tackle this would be by either a constitutional amendment [which needs two-thirds majority in parliament] or by it being further challenged in court again.”

Can the Supreme Court then overturn the bill if it is challenged in court? Journalist and lawyer Muneeb Farooq says that “Parliament has somehow tried to circumvent [the SC’s lifetime disqualification judgment] by stipulating in the amendment that it stands, regardless of any law or judgement in the field but this amendment can always be challenged in the court. And there will be a question regarding validity because the Supreme Court had already interpreted a particular article. So it is interesting to see how the Supreme Court will react to it.”

Moiz Jaferii, however, thinks that though “the chief justice could just strike this law down too for being inconsistent with a Supreme Court declaration, he doesn’t have enough capital left to do so”. He adds: “This isn’t law; it’s politics”.

There are also larger questions regarding Articles 62 and 63 at play here too, says Aaminah Qadir: “This also raises questions over how you interpret the supremacy of the constitution. If it is assumed that the constitution does not make clear whether disqualification under Article 62(1)(f) is lifetime, two interpretations can arise from that: one, it has been deliberately left this way by the wisdom of the legislature for the courts to correct or for the gaps to come out and be addressed through the different structures in the trichotomy of the separation of powers. The other interpretation is that the constitution has not specified whether the disqualification is lifelong and therefore it is only through a constitutional amendment that it can be determined.” She adds that this is a matter that could have been fixed long ago: “The ambiguity that was added to Articles 62 and 63 by Ziaul Haq, by the various military dictatorships and then by the Nawaz and the PPP regimes has benefited parliamentarians these past decades. Had they chosen to do so, they could have clarified what it means to be ‘sadiq and ameen’. They [could have] removed this from the constitution altogether. Or the courts could clarify the qualities that set out what it means to be sadiq and ameen.”