Supreme court of Pakistan verdict on 62(1)(f): Nawaz Sharif era is over?

In a landmark verdict that will change the course of the Pakistan’s political history, Justice Umar Ata Bandiyal of the Supreme Court of Pakistan on April 13, ruled that disqualification of lawmakers violating the criteria of “Sadiq and Ameen” under Article 62(1)(f) of the Constitution will be for lifetime.

Article 62(1)(f), which sets the precondition for a member of parliament to be "sadiq and ameen" (honest and righteous), is the same provision under which Nawaz Sharif was disqualified by a five-judge SC bench headed by Justice Asif Saeed Khosa on July 28, 2017, in the Panama Papers case. Likewise, Pakistan Tehreek-i-Insaf (PTI) leader Jahangir khan Tareen was disqualified on December 15 last year by a separate bench of the apex court under the same provision. Sharif himself had twice been removed from office during previous stints in power in the 1990s, once after a tussle with the president and a second time in a military coup by former army Chief Pervez Musharraf.

The verdict states, “The absence of a time limit for the ineligibility of a candidate for election in Article 62(1) (f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time, the reasons recorded in our judgment reinforce that conclusion.” The written order states that Articles 63(1) (a) and 63(1)(b) of the Constitution allow disqualifications on account of judicial declaration.

The verdict also states that the order will remain in effect so long as the declaratory judgment supporting the conclusion of the delinquent kinds of conduct under Article 62(1) (f) of the Constitution remains in effect.

In February, the bench, headed by Chief Justice of Pakistan Mian Saqib Nisar reserved judgment on the case related to the determination of time duration of disqualification under Article 62(1)(f) of the Constitution. During the same month, Nawaz Sharif contended before the SC that disqualification under Article 62 “is confined only to the election in question and not perpetual”. He stated this in a written statement in the matter related to the interpretation of Article 62 (1)(f) of the Constitution.

What are Sadiq and Ameen’?

On March 2, 1985, General Ziaul Haq issued The Revival of Constitution of 1973 Order (RCO), changing 67 clauses and sections of 280 articles of the Constitution. It represented the largest number of changes in a single stroke in the history of Pakistan. The purpose was to rework the Constitution to concentrate all power with the dictator also as part of his policy of turning the legal system of Pakistan toward Islamization.

“A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-…he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law,” reads Article 62(1)(f) of the Constitution of Pakistan.

Article 62, further explains the criterion of “qualifications for member of Majlis-i-Shoora (parliament)” and its clause (e) reads: “He has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins.”The clauses also call for candidates to be ‘Sadiq’ and ‘Ameen’ (honest and righteous) – names given to Prophet Muhammad (PBUH).

Some of the controversially reworked language was clauses in Article 62, which now required members of parliament to meet the conditions of being Sadiq and Ameen – two Arabic terms which were never clearly defined in English, the language of the Constitution of Pakistan.

For years, the clause has been a favourite tool of right-wing politicians, especially those spawned by the Zia regime, to smear ‘liberal’ opponents.

On July 28, 2017, history went full circle when, based on a reading of Article 62, the Supreme Court ordered Nawaz’s disqualification from the National Assembly for ‘dishonesty’ – namely his failure to declare certain assets. Ironically, during the drafting of the 18th Amendment to the Constitution in 2009 and 2010, the PML-N had opposed the removal of Article 62.

Previous Examples of contradictory decisions

Former Prime Minister Yousuf Raza Gilani was disqualified on June 19, 2012 from holding a seat in parliament for committing contempt of the court on moral turpitude in terms of Article 63 of the Constitution which specifies disqualification for a period of five years. Legal observers say the Supreme Court has handed down different verdicts on the disqualification of legislators like in the case of Iftikhar Ahmed Cheema who was de-seated in 2015 from the NA-101 constituency for concealing assets. Subsequently, he contested the by-election and regained his seat.

But in the case of Rae Hassan Nawaz, the apex court disqualified him under Article 62(1)(f). Likewise, the court allowed Jamshed Dasti to contest the election, but disqualified Rizwan Gill, Samina Khawar Hayat and Amir Yar under Article 62(1)(f) of the Constitution.

This decision becomes even more important in the wake of elections for the National Assembly in Pakistan. This decision is not only affecting Nawaz Sharif and his political party Pakistan Muslim League-Nawaz but will also seriously affect Pakistan's faltering democracy in the long run.