Judicial Activism or Parliamentary Omission?

Judicial Activism or Parliamentary Omission?

The recent disqualifications under Article 62(1)(f) of the Constitution of Pakistan have created immense political uncertainty and brought the contours of the judicial powers into question again. However, a recent judgment, as opposed to the one that removed Nawaz Sharif as the party head, is more detailed and comparatively well-reasoned.

The Supreme Court faced a predicament of having to reconcile between Article 62(1)(f) and Article 63(1)(h). The former relates to a civil liability having no time limit for disqualification prescribed within the text of this provision and the latter stipulates that a person convicted of an offence involving moral turpitude is ineligible to contest elections for five years after having been served no less than two years of a sentence for conviction of the same.

Additionally, the doctrine of ‘harmonious’ interpretation established in judicial precedents requires two express constitutional provisions to be read in harmony with each other to avoid any conflicts. On the other hand, the SC has the power to ‘read in’ to give effect to the intention of the Parliament provided that it is done in a restrictive manner.

The issue that arises is that it is not only the disqualification under Article 63(1)(h) for offences pertaining to moral turpitude which is of a temporary nature, Section 15 of the NAB Ordinance — which deals with the imposition of disqualification for offences of corruption and corrupt practices — also limits the disqualification period to ten years after the release from prison (owing to conviction). Similarly, section 99(1)(f), Representation of People’s Act (ROPA) provides for the same limitations as 62(1)(f). However, the bar in the former is temporary, while it is permanent in the latter. Basically, there are different sets of punishments for the same or similar offences.

The constitutional provisions that were added during military regimes were not removed by the subsequent parliaments and although the time period for disqualification under Article 63(1)(h) was introduced by way of the Eighteenth Amendment to the Constitution, Article 62(1)(f) remained untouched

So, if an individual is disqualified for corrupt practices under ROPA, (as a result of a conviction after the trial) the bar would be temporary, but if disqualified under Article 62(1)(f) (which is without a trial) the disqualification would be life-long. For this, the SC has drawn a distinction between civil and criminal liability for the same or similar offences, hence the court cannot invent new modes of punishment to reconcile between the two kinds of liabilities in presence of express provisions of law. Similarly, the court cannot read in a fixed period of disqualification when the constitutional provision itself is silent about it. Furthermore, disqualification under ROPA and other provisions of law relate to post-election offences, while the one under Article 62(1)(f) relates to entering the Parliament itself through dishonest means, hence the bar is permanent.

The problem which has inevitably been created, however, is that whilst the SC in this case has refrained from reading into, rightly so, the previous judgment whereby Nawaz Sharif was removed as party head, the same court has read the other provisions of the Constitution with Article 17(2) and added a bar into the Election Act 2017, which has not been expressly provided therein. This creates legal uncertainty as to when and to what extent the SC will read into the law.

Another issue with this judgment is the reconciling of the perpetual bar in Article 62(1)(f) with the right to association in Article 17(2) whereby any restriction arguably must be proportionate. Justice Umar Bandial in his note cited several judgments whereby disqualification under 62(1)(f) was rendered to be permanent. Also, those judgments which held that a constitutional provision relating to fundamental rights could not render another constitutional provision obsolete, were cited. Hence, the SC held that the right to association under Article 17(2) being a qualified right was not being infringed upon for the purposes disqualification as a result of an adverse declaration under Article 62(1)(f).

Based on the earlier judgments of the SC, Khawaja Asif was recently disqualified for life under Article 62(1)(f) by the Islamabad High Court (IHC). Justice Athar Minallah, who authored this profound judgment has correctly pointed out the failure of the Parliament in this regard. The constitutional provisions which were added during military regimes were not removed by the subsequent parliaments and, although the time period for disqualification under Article 63(1)(h) was introduced by way of the Eighteenth Amendment, Article 62(1)(f) remained untouched. This judgment has clarified the Panama judgment by laying down the test for determining whether an individual is ‘honest’ and ameen under Article 62(1)(f) by stating that it is not strict liability in its strictest sense and the court will instead assess whether this was an innocent mistake by taking into account different factors, such as whether the parliamentarian in question is a novice or one who has been contesting elections for years.

So, whilst disqualification under Article 62(1)(f) without any trial and through the exercise of suo moto powers and that too when the bar is a perpetual one is a cause for concern, it is a failure on part of the legislature for not removing anomalies in the Constitution. The failure is also on part of the judiciary for not adopting a consistent pattern of interpretation. Once a loose precedent is set, it is very difficult to get away with it.


An earlier version previously appeared in The Daily Times. Republished here with permission.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Ayesha Siddique Khan

Author: Ayesha Siddique Khan

The writer is a lawyer.