Disqualification under Article 62(1)(f) is for life: SC

The top court in a landmark judgement on Friday ruled that disqualification handed down under Article 62 (1)(f) of the Constitution is for life. In view of the judgement, former Prime Minister Nawaz Sharif, ex-General Secretary Pakistan Tehreek-e-Insaf Jahangir Tareen, and around 17 MNAs and MPAs can't become members of the Parliament and hold any public office for life. A total of 17 appeals and petitions were filed in the Supreme Court challenging the length of disqualification under Article 62(1)(f) for possessing fake degrees.
Nawaz Sharif was disqualified as a prime minister by a five-member Supreme Court bench on July 28, 2017, in the Panama Papers case under Article 62(1)(f) of Constitution, while Jehangir Tareen was disqualified by a SC three-member bench on December 15, 2017 under the same constitutional provision. A five-member bench headed by Chief Justice Mian Saqib Nisar and comprising Justice Sheikh Azmat Saeed, Justice Umer Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah, on February 14, 2018, had reserved its judgement.
The unanimous 50-page verdict, authored by Justice Umer Ata Bandial, said the disqualification of any member of Parliament or a public servant under Article 62 (1)(f) in the future will be permanent and such a person will be ineligible to contest elections, become a member of Parliament or hold any public office. Justice Azmat Saeed wrote an additional 10-page note.
"The qualities of sagacity, righteousness, honesty and trustworthiness laid down in Article 62(1)(f) of the Constitution as qualifications for membership to the elected Houses are actually derived from the Sunnah of the Holy Prophet Muhammad (PBUH). Such strengths can never be equaled by ordinary mortals for whom these are goals to strive for and more importantly not to consciously violate," says the judgement. The court observed that Ziaul Haq had incorporated the amendments in Articles 62 and 63 of Constitution, which were affirmed by the Parliament in 8th amendment in 1985. It also stated that in the 18th Amendment many changes were made in the Constitution but it retained Islamic provisions in Article 62 introduced by Ziaul Haq in 1985.
"Considering that the Constitution does not fix the period of incapacitation of such a judgement debtor shows a clear intention that the lack of qualification under Article 62(1)(f) of the Constitution should extend so long as the declaration of law envisaged in Article 62(1)(f) remains in the field," the verdict reads.
Before the announcement of the verdict, the Chief Justice observed that the public deserves leaders of good character and prestige. The verdict states that the restriction imposed by Article 62 (1)(f) of the Constitution for the eligibility of a candidate for election to Parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives.
It states that the judicial mechanism in Article 62 (1)(f) grants a fair opportunity for relief to a candidate under challenge to vindicate himself, thus the permanent incapacity of a candidate for election under Article 62 (1)(f) of the Constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the Constitution.
"In the post-18th Constitutional Amendment scenario, an adverse declaration by a court of law against a candidate is necessary to oust him from an election. However, it was held in Abdul Ghafoor Lehri vs Returning Officer, PB-29 (2013 SCMR 1271) that a false declaration made in the nomination papers by a candidate about his academic qualification led to a permanent embargo on the candidature for election. This is because Article 62 of the Constitution did not provide any period for which a person would stand debarred from contesting elections and, therefore, the appellant before the court could not become qualified merely by efflux of time," the verdict stated.
"In the result, we are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62 (1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgement supporting the conclusion of one of the delinquent kinds of conduct under Article 62 (1)(f) of the Constitution remains in effect," the verdict ruled.
In his additional note, Justice Sheikh Azmat Saeed noted that the court was empowered to interpret the Constitution but not to amend it. "It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto, therefore, we (SC) cannot read into Article 62(1)(f) of the Constitution, a period of such lack of qualification, which is not mentioned therein," he wrote.
He stated that some counsel had expressed concern over lifetime disqualification, saying this may be disproportionate and a little harsh. "Such arguments are perhaps more suitable to the floor of the Parliament than at the bar before this court. We, as stated above, can only interpret the Constitution and not amend or change it," he noted. "This aspect of the matter is rather ironic as several persons before us were or had been the members of Parliament at some point of time and may have passed the amendments, which now stand in their way," he further noted.
"This court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity," Justice Sheikh Azmat Saeed wrote in his additional notes.