SC has closed door on use of ‘Sadiq, Ameen’ law by courts: experts

KARACHI: Courts can no longer use Article 62(1)(f) until parliament specifies how the ‘sadiq and ameen’ condition is to be applied, point out legal experts after Monday’s Supreme Court verdict which they call was a necessary course correction. There is, however, some reservation regarding both the timing of the verdict as well as what is seen as the ‘finality’ of Supreme Court decisions.

Legal experts have largely welcomed the Monday verdict by the Supreme Court in the lifetime disqualification case, hailing it as a welcome righting of a wrong.

Soon after the verdict, former president of the Sindh High Court Bar Association Barrister Salahuddin Ahmed posted on X (Twitter) about the verdict. Calling it a “superb order”,he said the court had “gone further than just holding [that] disqualification will not be for [a] lifetime. They’ve held courts can’t use Art 62(1)(f) to [disqualify] politicians until parliament first passes a law declaring how Art 62 (1) (f) ‘sadiq & ameen’ criteria is to be applied by courts.” Ahmed explained that till that legislation is done by parliament Article 62(1)(f) will simply be “considered as [a] guideline for voters.”

High court advocate and former faculty at LUMS Hassan Abdullah Niazi says that the court has “sent the question back to parliament to determine how this article is to be practically enforced given its nebulous nature. This is the right approach instead of the court getting creative with the text (or lack thereof) of the constitution. Now the elected representatives of the people will decide the court that can make a declaration, the criteria to determine whether someone is sadiq or ameen, and the period of disqualification.”

While saying that Monday’s “short order is welcome” and a “course correction”, Niazi brings up its timing: “much like its 2018 decision, the timing of this judgment does the Supreme Court’s image no favours. Legal arguments on constitutional interpretation will become secondary in the minds of ordinary people who will see things as follows: Before an election in 2018, amidst allegations of a politician falling out of favour with the state, a disqualification occurs. Then, before an election in 2024, as relations are mended, the same politician is cleared to contest.”

Supreme Court advocate Basil Nabi Malik agrees. Saying that the Supreme Court decision “rights a wrong that was too obvious to ignore”, he adds that “as always, the timing leaves a lot to be desired, and begs the question of whether, at this juncture, justice was delivered or simply convenient?”

Malik explains the verdict in more detail: “Although the decision to hold Article 62 as a non-self-executing provision may be a source of future controversy, there can be no doubt that the interpretation rendered in relation to the duration of the disqualification is correct. The constitution does not specify a lifetime ban on anyone declared as not being sadiq and ameen, and in fact, a holistic reading of the constitution would indicate, if anything, a limited duration for such disqualifications.”

On Monday, lawyer Reema Omer had also taken to X and called the Supreme Court order “historic” and “as significant as the repeal of 58(2)(b).” Tweeting that “courts can no longer disqualify politicians from contesting elections based on arbitrary, subjective grounds of ‘sagacity’, ‘truthfulness’”, Omer said that “a tool for political engineering done away with, hopefully for good.”

Senior lawyers tend to agree with the favourable response to the verdict. Speaking to Geo News on Monday former law minister and PML-N leader Azam Nazeer Tarar said: “Our stance from the get-go was that the Samiullah Baloch was an unjust decision and against the rights guaranteed in the constitution. How can anyone be disqualified for life when no provision in the constitution says this?”

Hailing the verdict, constitutional lawyer and a senior PTI member Hamid Khan told Geo’s Shahzeb Khanzada on Monday night that “keeping the spirit of the constitution and a liberal interpretation of the constitution in mind, this is a good verdict. ... The point is not who gains or who doesn’t from this verdict but what it means in the longer term for democracy.”

For constitutional lawyer Usama Khawar, “the verdict is a commendable step from legal, constitutional, political, and democratic perspectives. The earlier judgment represented a clear overreach by the court into parliament’s constitutional domain.”

He says that it is important to “contextualize the Samiullah Baloch judgment within the broader landscape of concerns regarding the independence and impartiality of the Supreme Court during the 2018 General Elections. Widely perceived as partisan and allegedly targeting a specific political party, the judiciary faced scepticism regarding its neutrality. The corrective decision by the Supreme Court on Monday to overturn the lifetime disqualification aligns with democratic principles, rectifying what was seen as a politically charged judgment. This corrective step is not merely a legal adjustment but also a positive move, under Chief Justice Qazi Faez Isa, to restore confidence in the judiciary’s commitment to upholding democratic values and maintaining a separation of powers.”

Barrister Rida Hosain feels that the matter is not simple. According to her, Article 62(1)(f) “cannot be discarded as simply being a dictator’s creation” since while it was introduced in the Zia era, it was “retained and added to by the elected representatives of the people through the 18th Amendment.”

Hosain says that “the courts must make sense of this constitutional provision. Justice Afridi, the sole dissenting judge, attempts to make sense of it by holding that the disqualification will only remain effective until the declaration by a court remains in force.”

Contrary to other opinion, Hosain believes that “by holding that Article 62(1)(f) will serve as a ‘guideline’ until parliament makes a law making it executory, [the court] has made a constitutional provision redundant.”

Barrister Rida Hosain also has a question: “The majority decision also erodes the finality of Supreme Court decisions. This undermines the certainty attached to decisions of the highest court. Five judges gave one interpretation in 2018, six judges gave an entirely distinct interpretation in 2024. Given this precedent, what is to stop the court from enunciating a third, and novel interpretation a few years from now?”