By Saad Rasool.
A five-member bench of the honorable Supreme Court of Pakistan has rendered its detailed judgment in the case concerning determination of the period of disqualification, under Article 62(1)(f) of the Constitution (the ‘sadiq and ameen’ clause).
The judgment – which has resulted in the lifetime disqualification of, inter alia, Mr. Nawaz Sharif and Mr. Jehangir Tareen – does not come as a surprise to anyone in our political diaspora. Notwithstanding customary criticism of the honorable Court by select individuals, there can be little cavil with the legal reasoning of the judgment, or with the conclusions reached therein.
While a detailed analysis of all aspects of the judgment cannot be done in the space of this article, a few issues require particular focus.
Before delving into particulars of the honorable Court’s constitutional reasoning, it is important to point out that the judgment makes no mention (at all!) of Mr. Nawaz Sharif. The case was not filed on behalf of Nawaz Sharif. It was not argued in respect of Nawaz Sharif. It was not decided against Nawaz Sharif (in particular). The lifetime disqualification of Nawaz Sharif is only consequential to the judgment. So the (mala fide) narrative that the honorable Court has passed this judgment “against Nawaz Sharif” is entirely misplaced (in fact and in law).
The case only concerned the following legal proposition (irrespective of who falls within its ambit): since the Constitution is silent in regards to the time-period of disqualification under Article 62(1)(f), how long should the duration be?
This issue is exhaustively deliberated (as a purely legal proposition) in the erudite and detailed reasoning of the honorable Court, authored by the unimpeachable Mr. Justice Umar Ata Bandial. At the very outset, Justice Bandial (writing for the Court) clarifies that “the crucial question raised is whether the incapacity imposed by Article 62(1)(f)… is of perpetual effect if there is a declaration against him by a Court to the effect that he lacks sagacity or righteousness or is profligate or is dishonest or is not Ameen (untrustworthy).” And the only reason that the honorable Court is seized of the issue is “…because Article 62(1)(f) of the Constitution does not stipulate the duration of incapacitation…”
While analyzing these (and other) arguments, Justice Bandial notes that the constitutional requirement of ‘sadiq and ameen’ is derived primarily from Quranic sources and the life of Prophet Muhammad (SAWW), which “can never be equaled by ordinary mortals”. Still, for some reason, after insertion of this requirement by a dictator (Zia-ul-Haq), subsequently “elected” parliaments chose to keep it on the statute books, despite having had numerous opportunities to amend or repeal the same.
Rejecting the proposition that ‘saadiq and ameen’ clause should be read as a subset of ‘moral turpitude’, Justice Bandial points out that Articles 62(1)(f) and 63(1)(h) are “distinct and separate”, entailing “their respectively difference place, meaning and effect under the Constitution.” As such, Article 63(1)(h) “deals with the consequences of criminal liability”, whereas Article 62(1)(f) can also be attracted in cases of “civil” wrong.
In the circumstances, as already held by the honorable Court at four previous occasions (precedents), Justice Bandial holds that “it stands to reason that the consequential incapacity imposed [under Article 62(1)(f)]upon the candidate for election should last for as long as the declaration [from a competent court of law]is in force.” Driving the point home, Justice Bandial concludes that “if such declaration is final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution becomes permanent”, resulting in lifetime disqualification of, inter alia, Mr. Nawaz Sharif.
Justice Bandial’s judgment can be critiqued on the ground that it involves several religious references and underpinnings (in explaining the source of ‘sadiq and ameen’ clause). However, it is important to point out that the judgement does not impute religious texts or reasoning in arriving at its dicta of ‘perpetual disqualification’ under Article 62(1)(f).
In many ways, the even more declarative reasoning for the honorable Court’s conclusion is contained in the (brief) additional note, authored by Justice Sheikh Azmat Saeed, which reads as a complete judgment in itself. In fact, the clarity and candor of Justice Saeed’s note almost makes the rest of the detailed reasoning superfluous.
Justice Sheikh’s note cuts through the legal technicalities (as well as religious underpinning of the main judgment), and focuses on the language of the constitutional provision itself. Justice Sheikh points out that qualification of a ‘sadiq and ameen’ individual, under Article 62(1)(f) of the Constitution, is contingent upon “there being no declaration to the contrary by a court of law”. As such, “the obvious, legal and logical conclusion would be as long as the cause i.e. the declaration of a Court of Law holds the field, its effect i.e. the lack of qualification shall also prevail.” He correctly points out (with the sort of candor that is unarguable) that “no sane person could seriously urge to the contrary.”
Briefly addressing the contention that the honorable Court should stipulate a specific time-period under Article 62(1)(f), in light of the durations mentioned under Article 63 of the Constitution, Justice Sheikh clarifies that “this court is empowered to interpret the Constitution, but not to amend it.” As a result, he notes that “we cannot read into Article 62(1)(f) of the Constitution, a period of such lack of qualification, which is not mentioned therein.” Furthermore, in response to the contention that perpetual disqualification is “disproportionate and a little harsh”, Justice Sheikh notes that it is “rather ironic” that several litigants in the case – who were, or had been, members of the Parliament – did nothing to legislate a duration of disqualification under Article 62(1)(f), and are now asking the honorable Court to “legislate” instead.
A reading of the honorable Court’s judgment, in entirety, leads to one inescapable conclusion: Nawaz Sharif, Jehangir Tareen (and other parliamentarians falling within the ambit of Article 62(1)(f)) have become a victim to their own lethargy in legislative matters. Up until very recently, they had never taken provisions of the Constitution (especially relating to qualification/disqualifications) too seriously. In a country ruled by private dynasties of Jati Umrah and Larkana, who could dare impose (academic) constitutional provisions against the King? Who could have ever had the audacity to tell the emperor that he was not wearing any clothes? In a democracy that is nothing more than the King’s coterie, what force could some obscure provision of law have? After all, how can a butterfly challenge the hurricane?
Thankfully, after almost seventy years of mutilated democracy and individual fiefdoms, our Constitution and State institutions have gathered the courage to speak truth to power. We are moving towards rule of law, as opposed to rule of the lawmakers.
There is a silent revolution afoot, in Pakistan. A revolution that threatens to uproot entrenched forces of status quo – simply through enunciation and enforcement of the law. And in this critical moment, our law and the Constitution needs support from all those who, hitherto, had sat silently on the sidelines.
The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at: email@example.com, or Twitter: @Ch_SaadRasool