Justice Yahya Afridi disagrees with decision.

ISLAMABAD  -  The Supreme Court of Pakistan on Monday annulled the lifetime disqualification for lawmakers under Article 62(1)(f) of the Constitution in a6-1 majority verdict. In a short order, the seven-member larger bench of Supreme Court headed by Chief Justice Qazi Faez Isa announced its reserved verdict.

Now all the aspirants disqualified under Article 62(1)(f) of the Constitution have become eligible to contest elections. Justice Yahya Afridi disagreed with the majority decision.

The outcome of the Supreme Court hearing has decided the political future of both Sharif and Jahangir Khan Tareen as well as many other politicians. 

The seven-member bench of the apex court headed by Chief Justice Qazi Faez Isa, and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali had reserved the judgment on January 05, 2024 after hearing the arguments of petitioners, AGP Mansoor Usman Awan and the advocates general of all the provinces.

Justice Yahya Afridi disagreed with the majority. He wrote; “… the extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1) (f) of the Constitution, is 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.”

The majority order declared: “Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan (“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.

It added, “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,” maintained the apex court. It continued that 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.

The SC order said, “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.”

It further said that 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.

It declared, “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.”