The Supreme Court of Pakistan nullified on Monday the lifetime disqualification for politicians in a 6-1 majority verdict, paving the way for PML-N supremo Nawaz Sharif and IPP’s Jahangir Tareen to contest the February 8 general elections for the coveted seats.

Chief Justice of Pakistan Qazi Faez Isa announced the decision on a set of petitions challenging disqualification under Article 62(1)(f) of the Constitution in a live proceeding on YouTube and TV.

Politicians would not be disqualified for a lifetime, the top court said and added that it was the basic right of citizens to contest elections.

The apex court highlighted that it does not have the right to disqualify anyone under Article 184 (3) of the Constitution. “Politicians would be disqualified for five years,” it said while highlighting the duration defined in the Election Act.

A seven-member bench of the SC led by CJP Qazi Faez Isa reserved the verdict on Friday. The bench also includes Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali.

The decision would pave the way for multiple political leaders, including Nawaz Sharif and Jahangir Tareen, to contest the upcoming general elections. Both of them were barred from holding public office for a lifetime under the above mentioned law. Article 62(1)(f) sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous).

Although the two leaders, among others, had received lifetime disqualification sentences, amendments by the outgoing Pakistan Democratic Movement government had limited disqualification to five years.

Also, read this

NA passes election bill clearing way for Nawaz, Tareen

Nawaz Sharif, Jahangir Tareen inch closer to overturning disqualification

NA passes election bill clearing way for Nawaz, Tareen

The amendments had created a complex legal question which is now expected to be settled by the court.

However, the court had tried to dispel the notion that the case would benefit a particular personality. CJP Isa even barred a lawyer from mentioning Sharif’s name during a hearing on Friday.

At one point in the case, the CJP observed that Parliament had limited the disqualification period to five years. “We can’t tell Parliament to craft a law this way. This is their job, our job is another job. Is it unconstitutional?”

The disqualification sentence remained the last remaining legal hurdle in Sharif’s bid to become PM for the fourth time.

Order

The court decided that:

• Article 62(1)(f) of the Constitution is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.

• There is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder, to meet the requirements of the Fundamental Right to a fair trial and due process guaranteed by Article 10A of the Constitution.

• The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution.

• Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.

• Until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.

• The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled.

• Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 promulgated on 26 June 2023, prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and has also made such declaration subject to the due process of law. This provision is already in field, and there remains no need to examine its validity and scope in the present case.

Justice Afridi disagrees with majority decision

Justice Yahya Afridi disagreed with the decision, saying that the extent of the lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) of the Constitution was neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a court of law remains in force.

“Therefore, the conclusion so drawn by this Court in Sami Ullah Baloch Versus Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed.”