Disqualification for life

The Supreme Court is in the process of hearing a set of 17 inter-connected appeals against the disqualification of parliamentarians in which it is expected to rule on the duration for which a parliamentarian is disqualified under Article 62(1)(f) of the constitution.

Many in the legal community agree that our existing jurisprudence on this subject is a mess. The judgements passed in the last decade or so have been myopic as they neither engage with the constitutional text or with the important constitutional themes that underpin our constitution. The fact that these appeals are now being heard by a five-member bench of the Supreme Court offers a rare but momentous opportunity for the court to not only address and settle important jurisprudential questions on Articles 62 and 63 of the constitution but also to restore some consistency in the court’s reasoning on this subject. One hopes that the Supreme Court will – at the very least – address and fully engage with the following two issues: a) d ifference between Articles 62 and 63; and b) period of disqualification.

For the first, to put things in context, Article 62 provides that “[a] person shall not be qualified to be elected or chosen” as a member of parliament “unless” he meets all the conditions listed in Article 62(1). By contrast, Articles 63 provides “[a] person shall be disqualified from being elected or chosen as, and from being, a member of parliament” if he meets any one of the conditions listed in Article 63.

The distinction between the two is important because the infamous requirement of “honest and ameen” is listed in Article 62(1)(f) only and not in Article 63. So, if Article 63 applies only to post-election disqualification, then a sitting parliamentarian cannot – after his election – be disqualified for not being “honest and ameen”.

In the Panama Case, the Supreme Court rejected this distinction for being “illusory” and dismissed the “notion that Article 62 deals only with pre-election qualifications and Article 63 deals with post-election disqualifications only”. In doing so, the Supreme Court appears to have conflated the two. This overlapping treatment does not sit well with the court’s previous judgment in Syed Mehmood Akhtar Naqvi vs FOP (PLD 2012 SC 1089) where it said that since Article 63 prevents a person “from being elected or chosen” (a phrase that refers to an aspiring candidate) and also “from being, a member of [parliament]” (a phrase that refers to an existing parliamentarian), the disqualifications listed in Article 63 deal with both pre and post-election disqualification. If that is true, then as a logical corollary, Article 62 (and the requirement of “honest and ameen”) should only be restricted to pre-election disqualification because the phrase “and from being” is missing from its language. The SC simply glossed over this point in the Panama Case but has an opportunity to revisit it now.

Coming to the second issue, in the Panama Case, the SC held that a disqualification under Article 62(1)(f) is for life. This is in line with what was held in Najeeb-ud-Din Owasi v Amir Yar Waran (2013 PLD 482).

The principal justification given by the SC is that, unlike other provisions in the constitution where a time limit is prescribed for disqualification, Article 62(1)(f) does not provide any such limit. This means that the framers intended the disqualification under Article 62(1)(f) to be for life. If they had intended anything different, they would have prescribed a time limit for Article 62(1)(f) as they had done for the other conditions listed in Article 63.

However, it is equally plausible to argue that had the framers intended a disqualification under Article 62(1)(f) to be for life, they would have expressly provided so and the fact that they did not do so means that the court should not do that either. The court’s presumption is hard to reconcile with the constitutional text.

Having said that, one can to some extent sympathise with the court on this point because there is a meta-lingual problem that complicates the matter – something that was avoidable had Articles 62 and 63 been drafted a bit better.

Consider the following. A disqualification is more in the nature of a penalty for which you can be punished. Once you have served the penalty, you are free and the restraints on your freedom are lifted. An eligibility to do something however is more of a disability and unless that disability is cured you can’t really undertake the prohibited activity.

With this distinction in mind, the requirement of “honest and ameen” (even if we had to retain it) should have gone under Article 63 and not under Article 62 for then one could be penalised for it and then set free by removing the disqualification after a certain time period. But since this requirement is listed in Article 62 (as a disability), a person who has been declared to lack the traits of honesty and truthfulness stands disabled from contesting the elections till such time that the disability is cured. But how do you go about curing a disability imposed by the SC? The existing law simply does not allow you to do that for there is no way to reverse a declaration made by the SC.

The Supreme Court’s declaration under Article 62(1)(f), therefore, acts as a de facto disqualification for life. A constitutional amendment is required to escape this bind.

Be that as it may, this should not distract us from the larger normative point which underpins this debate. People should have the right to freely choose their representatives no matter how bad the SC finds them to be. If we can allow criminals to serve their sentences and be re-integrated back into society, then we should also give those who are not “honest and ameen” a shot at self-correction subject of course to re-election by the people. This is why disqualification for life makes no sense as it encroaches upon the principle of electoral choice.

Let’s not make this debate about particular individuals; a larger principle is at stake here.

The writer is a lawyer. Twitter: bbsoofi Email: b.soofi@gmail.com