Justice Sheikh Azmat Saeed additional note in disqualification tenure verdict

The Supreme Court of Pakistan has announced the verdict on the Disqualification Duration Case in accordance with the Article 62 of the Constitution of Pakistan.

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The apex court had reserved on 14 February 2018 its decision in the case to determine the time period that elected parliamentarians will remain disqualified for.

A five-member larger bench, headed by the Chief Justice of Pakistan Justice Mian Saqib Nisar unanimously maintained that a parliamentarian de-seated in violation of Article 62(1)(f) and other election laws will not take part in parliamentary politics, barred to contest elections.

Justice Umar Ata Bandial read out the historic verdict, NewsOne reported.

However Justice Sh. Azmat Saeed wrote an additional note.

“I concur with the conclusions drawn in the said judgment but I do not find myself in agreement with reasoning employed in its entirety,” he wrote.

The note is produced here under:

Sh. Azmat Saeed, J.- I have had the privilege to go through the judgment of my learned brother Umer Ata Bandial, J., though I concur with the conclusions drawn in the said judgment but I do not find myself in agreement with reasoning employed in its entirety.

2. The adjudication of the lis at hand requires the interpretation of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 so as to determine the period of time to which the lack of qualification in terms thereof shall extend.

The aforesaid provision is reproduced herein below for ease of reference:-

“62. (1) A person shall not be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless:-

(f) he is sagacious, righteous, nonprofligate, honest, and ameen, there being no declaration to the contrary by a court of law; and

The words and expressions denoting the attributes for being qualified to be a Member of Majlis-e-Shoora (Parliament), as spelt forth in the aforesaid provision, leaves no manner of doubt that the same i.e. Article 62(1)(f) of the Constitution is rooted in and inspired by our Islamic values. It is not necessary to dwell further on this aspect of the matter in the instant proceedings. However, the said provision must be interpreted with great care, caution and respect.

3. The historical background and various amendments, which have been periodically introduced into Articles 62 and 63 of the Constitution have been very ably dealt with by my learned brother in his judgment and need not to be repeated.

However, Article 62(1)(f) of the Constitution is required to be interpreted as it stands today. A plain reading of Article 62(1)(f) of the Constitution reveals that in order to be a Member of Majlis-e-Shoora (Parliament), the person must be, inter alia, sagacious, righteous, non-profligate, honest, and ameen. However, if there is a declaration by a Court of Law to the contrary i.e. he is not sagacious or righteous or non-profligate, honest, and ameen then such person shall not be qualified to be a Member of Majlis-e-Shoora (Parliament). A declaration by the Court of Law would mean a conclusive finding. Obviously, such finding would be with regard to a lis before the Court, arising out of the violation of a law or non-fulfillment of a legal obligation. It is clear and obvious that lack of qualifications in terms of Article 62(1)(f) of the Constitution is the effect of a declaration by a Court of Law to the contrary, which is the cause. 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. This appears to be the only possible interpretation of Article 62(1)(f) of the Constitution.

4. The expression “declared by a Court” has also been used in Article 63(1)(a) of the Constitution, which is reproduced hereunder:

“63(1)(a) he is of unsound mind and has been so declared by a competent court; or”

5. Obviously, in the aforesaid circumstances, the disqualification would continue as long as the declaration regarding the mental incapacity subsists. No sane person could seriously urge to the contrary.

6. During the course of hearing of the instant proceedings, a large number of counsels addressed at the bar, both on behalf of various parties and as amicus curie. Each and every counsel was confronted with the above mentioned obvious interpretation of Article 62(1)(f) of the Constitution that the lack of qualification was the effect of the declaration by a Court of Law, which was the cause and the duration of such effect would be the duration of the cause i.e. declaration. The response on behalf of the learned counsels by and large that upon an accumulative reading of Articles 62 and 63 of the Constitution pertaining to the qualifications and disqualifications of a Member of Majlis-e-Shoora (Parliament) would reveal that disqualifications resulting from acts and omissions of much greater gravity the period of disqualification is limited, hence that lack of qualification in terms of Article 62(1)(f) of the Constitution cannot be perpetual. It was also contended that lack of qualifications in terms of Article 62(1)(f) of the Constitution also falls squarely within the disqualification as is set forth in Article 63(1)(h) of the Constitution and the negative impact thereof is for a limited period of time.

7. Adverting first to Article 63(1)(h) of the Constitution, the reasons for disqualifications provided therein do not appear to be congruent with the lack of qualifications as set forth in Article 62(1(f) of the Constitution. More importantly, if such an interpretation is accepted, it would make Article 62(1)(f) of the Constitution superfluous and redundant. It is an elemental principle of the interpretation of the Constitution that surplusage cannot be attributed to any provision of the Constitution, hence, it is legally impossible to accept this contention.

8. No doubt the period of disqualification in certain sub-Articles of Article 63 of the Constitution has been provided but such a sunset clause is not found in Article 62(1)(f) of the Constitution. The framers of the Constitution chose not to do so. This Court is empowered to interpret the Constitution but not to amend it. It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto, therefore, we cannot read into Article 62(1)(f) of the Constitution, a period of such lack of qualification, which is not mentioned therein.

9. Some of the learned counsels also voiced that perhaps the effect of Article 62(1)(f) of the Constitution qua the period of lack of qualification may be disproportionate and a little harsh. Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. We, as stated above, can only interpret the Constitution not amend or change it. This aspect of the matter is rather ironic as several persons before us were or had been the Members of Majlis-e-Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way.

10. None of the learned counsels, who appeared before us confronted the elephant in the room i.e. the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a Member is the effect of declaration by a Court of Law, which is the cause and period of lack of qualification would be co-extensive with the period to the cause i.e. declaration. None of the learned counsels refuted the aforesaid obvious interpretation but only sidestepped the issue.

11. However, at the very end, the learned Attorney General for Pakistan addressed the Court and in no uncertain terms stated that once declaration has been made by a Court of Law that a person is not sagacious or righteous or non-profligate or honest and ameen, such a person is not qualified to be a Member of Majlis-e-Shoora (Parliament). This lack of qualification is the effect of the aforesaid declaration, which is the cause and as long as the declaration by the Court holds the field, the person in respect of whom such declaration has been made will continue to be deprived of the qualifications to be a Member of Majlis-e-Shoora (Parliament).

12. The stand taken by the learned Attorney General for Pakistan is not only fair but is also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution. Incidentally, this Court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity. Reference, in this behalf, may be made to the judgments of this Court reported as Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad (PLD 2009 SC 107) and Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), and no reason has been advanced to persuade me to take a different view.

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