The Supreme Court has been urged to hold that the declaration by a court of law under Article 62 (1) (f) only applies to the election under question and does not entail a perpetual/ lifetime bar. The Supreme Court Bar Association (SCBA), on Tuesday, filed a petition under Article 184 (3) of Constitution through its President Ahsan Bhoon and arrayed the federation as the respondent because the constitutional questions involve.

The result of the SCBA petition could impact a big change in the political scenario as the apex court's verdicts had disqualified two key politicians, Pakistan Muslim League-Nawaz leader Nawaz Sharif and former Pakistan Tehreek-e-Insaf leader Jahangir Tareen, for lifetime.

It further prayed to declare that the proceedings/ declarations under Articles 184(3) or 199 of the Constitution do not constitute declarations by a court of law, as per the principles expounded by the apex court. The SCBA chief submitted that the Supreme Court has a duty to preserve and protect fundamental rights.

However, reading in a lifetime disqualification into Article 62(1) (f) has had the opposite effect on rights under Article 10-A, without a clear reasoning to that effect. He stated that as there is no mention of disqualification being permanent or indefinite under Article 62(1)(f), hence, the same cannot be presumed.

The SCBA chief submitted that had the Parliament intended to give perpetuity to a declaration under Article 62(1)(f), it would have stated so by inserting specific language to this effect. He further submitted that this Court has incorrectly read lifetime disqualification into Article 62(1)(f) in Abdul Ghafoor Lehri, Sami Ullah Baloch and all the other judgments.

The petitioner stated that from the Supreme Court judgment in Roshan Ali Buriro v Syed Murad Ali Shah and others (2019 SCMR 1939) it becomes clear that for the disqualification to attain permanence, the declaration by a court of law referred to in Article 62(1)(f) must be given after the recording of evidence and cannot be given in summary or inquisitorial proceedings.

The petition submitted that in Allah Dino Khan Bhayo, the Supreme Court decided, in no uncertain terms, that for a declaration to trigger permanent disqualification under Article 62(1)(f), it is essential that the said declaration is issued after not only the recording of evidence, but also after cross-examination of witnesses. It said that the apex court also decided that where these requirements have not been met, the declaration will be operative to the extent of the election under consideration, and not for any future elections. “Thus, this Court held that disqualification will not be perpetual and a candidate will be able to contest subsequent elections.”

The petition said the Supreme Court under Article 184(3) of the Constitution, exercises extraordinary and original constitutional jurisdiction. It does not act as a trial court where the person against whom a declaration under Article 62(1)(f) being sought is afforded the right to lead evidence, produce witnesses, cross-examine the other side’s witnesses and so on. Therefore, the apex court and the high court exercising jurisdiction under Article 199 of the Constitution, do not qualify as the “courts of law” who may give declarations under Article 62(1)(f).

It further submitted that the proceedings under Article 184(3), afford no right of appeal to a person against whom a declaration is given by the august court. It said that it has consistently been held by the SC that one right of appeal is intrinsic to access to justice. “With no right of appeal, a person against whom a declaration under Article 184(3) is given is left with no adequate remedy to vindicate himself.”

The petition further said that the failure to provide an opportunity for cross-examination, proceedings under Article 184(3) are additionally violative of the principles of due process and the right to a fair trial, as they preclude the possibility of any kind of appeal. The SCBA chief submitted that it is necessary to reconcile the jurisprudence of Supreme Court to consider whether the denial of the right to an appeal - that results in a lifetime disqualification - is violative of the fundamental rights of such persons, as well as their potential voters.

This article was first published in Business Recorder on Jan 28, 2022.