Constitutional amendment can override lifetime ban on politicians, lawyers say

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  • Notable lawyers wonder whether SC’s decision of permanently disqualifying politicians under Article 62 (1) (f) has completed judicialisation of politics in Pakistan

 

ISLAMABAD: The much-awaited decision of Chief Justice Mian Saqib Nisar-led five-judge Supreme Court Bench deciding the duration of disqualification under Article 62(1) (f) of Constitution of Pakistan has left many senior members of legal fraternity confounded  as they question the nature of ‘perpetual and forever disqualification’.

Pakistan Today contacted senior lawyers, jurists and  constitutional experts of Pakistan to ask them to weigh in on what is considered as the final blow to the House of Sharif from the higher judiciary.

Eminent jurist, expert of constitutional law and senior advocate of Supreme Court, SM Zafar was of the view that when parliament leaves a void or leave things ambiguous, the apex court has to step in to ensure clarity and implement the law of the land. “However, let me be very clear that this void was consciously left by the parliament. It should have been decided in unequivocal terms. Mistakes of the past have come to haunt politicians in the present,” he said.

Zafar was of the view that Article 62(1)(f) was brainchild of General Ziaul Haq who inserted it through LFO. ‘What parliament missed, SC made clear and decided that disqualification will be permanent. Now the ball is once again in the parliament’s court. They can make a constitutional amendment and bring the constitution back to its original shape and form,’ he concluded.

Notable criminal lawyer and Member Pakistan Bar Council, Advocate Azam Nazeer Tarar said that the SC is talking about a declaration made by a court mandatory for disqualification.

“How is it possible. Once you close a transaction and you say it is past and close transaction, you can’t re-open it. I am baffled. The best way out would have been to say that we’ve pondered upon the matter and believe that it is not the Supreme Court who can fix the tenure of disqualification and then refer the matter to parliament for amendment, ratification,’ Tarar said.

Tarar feared that the route SC has taken will make this judgment the most controversial judgment of the decade.

Advocate Supreme Court Chaudhry Faisal was of the view that Supreme Court is empowered to enter into the realm of  interpretation of the Constitution. “Supreme Court has interpreted the constitution today and has supplied the much-needed clarity. They’ve interpreted a principle. It is a good decision and I don’t see it going any other way,” Chaudhry said.

Chaudhry was of the opinion that permanent disqualification is a phenomenon world over. When asked about the Pakistan Muslim League- Nawaz (PML-N) narrative that since military coups are not feasible and the era of ‘judicial coups’ is upon Pakistan, Chaudhry said that had it been a judicial coup, Nawaz Sharif would have been in Adiala.

When asked what option parliament has, Chaudhry said that they can amend the Constitution and their judgement will be binding on all institutions.

“We first need to understand the philosophy behind the disqualification law. In any law, anywhere in the world, there is no such thing as a permanent and perpetual disqualification in any facet, even in criminal. Permanent disqualification of a human being, for a human activity is nowhere applicable in the world. The rationale behind this can be found in the theories of correction and reforms, both in western and Islamic jurisprudence. No person can be condemned forever,” said Advocate Majid Bashir.

Bashir was of the view that the best scenario would have been for the parliament to decide upon the matter and fix a particular time and duration till when disqualification remained in force.

‘But again, since the parliamentarians are not interested in making reforms, some one had to step up and take charge. They are interested in their perks, privileges and salaries. If only they had shown a fraction of interest in legislation, they won’t have to see the present day,” Bashir said.

Ironically, the verdict was announced on Friday the 13 April and had all the trappings that confirm age old superstitions as  Nawaz Sharif, Jahangir Khan Tareen, Abdul Ghafoor Lehri, Chaudhry Attaur Rehman, Maulvi Muhammad Hanif among other politicians who were disqualified.