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Official Citation: 2024 PLJ 379
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2024 PLJ 379. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 SC 379
Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Syed Mansoor Ali Shah, Muhammad Ali Mazhar, Yahya
JUDGMENT
Reported As:2024 SCP 65, PLJ 2024 SC 379, 2024 SCP 66, 2024 SCP 6, PLD 2024 Supreme Court 1028 Result: Order Accordingly Judgment JUDGMENT Qazi Faez Isa, CJ. On 11 December 2023, these and all cases involving the same constitutional-legal question were ordered to be fixed before a Bench constituted by the Committee under the Supreme Court (Practice and Procedure Act), 2023. The Committee decided to fix these cases for hearing before this seven-member Bench. 2. The decision in Sami Ullah Baloch v Abdul Karim Nousherwani,[1] which had interpreted Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan ('the Constitution') held that once a person is disqualified thereunder such person can never again contest elections. However, section
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232(2) of the Elections Act, 2017 ('the Act') stipulates that such disqualification can last for a maximum period of five years. The question for our consideration is whether the decision in the Sami Ullah Baloch case accords with the Constitution. 3. Section 232(2) of the Act provides that if a person has been declared by a court to have violated Article 62(1)(f) of the Constitution, such person would be disqualified from contesting elections for a period not exceeding five years. Section 232(2) of the Act, which was enacted on 23 June 2022, is reproduced hereunder: '232(2) Notwithstanding anything contained in any other provisions of this Act, and other law for the time being in force and judgment, order or decree of any court, including the Supreme Court and a High Court, the disqualification of a person to be elected, chosen or to remain as a member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly under paragraph (f) of clause (1) of Article 62 of the Constitution shall be for a period not exceeding five years from the declaration by the court of law in that regard and such declaration shall be subject to the due process of law.' Until the enactment of section 232(2) the law did not prescribe the period for which the disqualification under Article 62(1)(f) of the Constitution would last. 4. In view of the public importance of the questions to be determined by this Court, and as the decision may affect others too, vide order dated 11 December 2023, it was directed that public notices be issued; one such published Public Notice[2] is reproduced hereunder: 'IN THE SUPREME COURT OF PAKISTAN PUBLIC NOTICE (Issued pursuant to Supreme Court's order dated 11 December 2023) While hearing Civil Appeals No. 981, 984 and 985 of 2018, the question of disqualification and period of disqualification under Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, the applicability of the decision of the Supreme Court in the case of Samiullah Baloch v Abdul Karim Nausherwani (PLD 2018 Supreme Court 405) and section 232(2) of the Elections Act 2017 arose. Since the decision in the said appeals may affect potential candidates in the forthcoming elections, public notice is hereby given to them, and they may file concise statements, without reference to facts of individual cases. The said appeals and all other cases involving the same questions are fixed before a seven-Member Bench on Tuesday, 2 January 2024. Registrar'
5. Notices were issued to the Attorney-General for Pakistan and to all the Advocate Generals of the provinces since the interpretation of the Constitution, the Elections Act and the applicability of an earlier decision of the Supreme Court was required. Notice was also issued to the Election Commission of Pakistan. Mr. Sami Ullah Baloch, the petitioner in the Sami Ullah Baloch case was also issued notice and his brother, Mr. Sana Ullah Baloch, attended a hearing but then absented himself, therefore, we granted Mr. Sami Ullah Baloch another opportunity to attend and/or to engage a counsel to represent him but he did not avail of the same. 6. The Supreme Court had decided the case of Sami Ullah Baloch on 13 April 2018, which was before the enactment of section 232(2) which came into effect on 23 June 2022. In Sami Ullah Baloch it was decided that a person disqualified under Article 62(1)(f) of the Constitution would not be able to contest elections, as under: '... a candidate for election who has committed misconduct falling within the terms of Article 62(1) (f) of the Constitution, in particular, misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office... a person declared to be dishonest or in breach of his trust or fiduciary duty or being non-righteous or profligate must suffer the burden of that
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finding of incapacity for as long as the Court decree remains in force. Considering that the Constitution does not fix the period of incapacitation of such a judgment debtor shows a clear intention that the lack of qualification under Article 62(1)(f) of the Constitution should extend so long as the declaration of law envisaged in Article 62(1)(f) remains in the field. If such declaration is final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution becomes permanent.'[3] 7. My distinguished colleague Yahya Afridi, J based his disagreement with us on the assumption that Sami Ullah Baloch had stated that disqualification 'under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 is neither lifelong nor permanent ...'. However, the learned Umar Ata Bandial, J (as he then was) who had authored the judgment in Sami Ullah Baloch had himself noted that, 'In Sami Ullah Baloch's case this Court affirmed the rule that Article 62(1)(f) of the Constitution creates a permanent bar against contesting the general elections.'[4] Additionally, through his separate but concurring opinion in Sami Ullah Baloch case, Sh. Azmat Saeed, J, held, that: '... this Court on more than one occasions has already held that lack of qualification suffered under Article62(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 SC482), 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.'[5] History of Article 62 of the Constitution 8. The qualifications required of a person who may contest elections are provided in Article 62 and disqualifications are mentioned in Article 63 of the Constitution. The original text of Article 62, which was unambiguous and clear, is reproduced hereunder: Original text of the 1973 Constitution[6] '62. Qualifications for membership of Parliament.- A person shall not be qualified to be elected or chosen as a member of Parliament unless- (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll for election to that Assembly; (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and (d) he possesses such other qualifications as may be prescribed by Act of Parliament.' 9. On 5 July 1977 General Muhammad Zia-ul-Haq by force of arms took over the running of the country by imposing martial law. Parliament and provincial assemblies were dissolved, and the Federal Government and provincial governments were dismissed. Democracy was supplanted by one-man rule and the Constitution configured to perpetuate it. Additional clauses were arbitrarily added to Article 62 of the Constitution when the transition back to democratic rule could no longer be prevented. Eight years after jettisoning the Constitution, the Revival of the Constitution of 1973 Order, 1985 was presented to the nation as a fait accompli.[7] The price extracted for the revival of the Constitution were the wholesale changes made by General Zia-ul-Haq to the Constitution, including those inserted in Article 62, reproduced hereunder: '62. Qualifications for membership of Majlis-e-Shoora (Parliament).- A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless- (a) he is a citizen of Pakistan;
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(b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Muslim seat, as the case may be, in that Assembly; (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; (d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous and non-profligate and honest and ameen; (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan; Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament).' 10. The underlying reason for adding new clauses to Article 62(1)(f) was not to ensure that better persons come to represent the people but to stymie the detractors of General Zia-ul-Haq. The original Constitution had clearly delineated who was qualified and disqualified to contest elections, but matters were obfuscated. The nation was now faced with sanctimonious, moralizing and aspirational words, which blurred clarity and precision to enable the removal of troublesome candidates. 11. The additions made to Article 62(1) of the Constitution now required that a candidate in addition to the stipulated requirement must also be: 'of good character' 'not commonly known as one who violates Islamic injunctions' 'Has adequate knowledge of Islamic teachings' (applicable to Muslims) 'Practices obligatory duties prescribed by Islam' (applicable to Muslims) 'Abstains from major sins' (applicable to Muslims) 'sagacious' 'righteous' 'non-profligate' 'honest and ameen' 12. The minefield of vague and emotive language used in clauses (d), (e) and (f) of Article 62(1) proved difficult to disarm. What one-man's weaponized pen did to the Constitution could now only be undone by two-thirds of the entire membership of the National Assembly and the Senate. Through the Constitution (Eighteenth Amendment) Act, 2010 [8]Parliament strived to again democratize Pakistan and substituted the text of Article 62 with the following: 62. Qualifications for membership of Majlis-e-Shoora (Parliament).-(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless- (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in- (i) any part of Pakistan, for election to a general seat or a seat reserved for non-Muslims; and (ii) any area in a Province from which she seeks membership for election to a seat reserved for women.
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(c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; (d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; (g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan. (2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.' The words - 'there being no declaration to the contrary by a court of law' - were added to clause (f) of Article 62(1) of the Constitution. Parliament assumed that by requiring a court declaration the fuse of disqualification could no longer be ignited and since Article 62(1)(f) did not stipulate the period of disqualification it could not be conceived to be permanent. However, the Sami Ullah Baloch case by reading in to the Constitution (words which were not there) decided that such disqualification is permanent. 13. The original text of the Constitution had a clear delineation between qualifications and disqualifications. Article 62 of the Constitution attended to the Qualifications for membership of Parliament and Article 63 to the Disqualifications for membership of Parliament. The distinction was blurred by the Revival of Constitution Order; some changes made by it to the Constitution, such as adding the word Majlis-e-Shoora to Parliament were benign, however, other amendments made to the Constitution were circuitous and devious. Language was used to deviate from precision and was aimed to arouse emotions. The hallmark of any important document, in this case one that determines who may represent the people and who may be eligible to govern, must be precise and should be objectively understandable. 14. Parliamentarians had deliberated and understood that by adding the caveat - there being no declaration to the contrary - they had preserved the emotiveness of the words (inserted by General Zia-ul-Haq) in Article 62(1)(f) - 'sagacious, righteous and non-profligate and honest and ameen' - while rendering these words inconsequential, particularly when neither the procedure nor any court was conferred with jurisdiction to issue such a declaration mentioned therein. Therefore, since disqualification under Article 62(1)(f) of the Constitution was rendered an impossibility, Parliament did not consider the necessity to stipulate the duration of the disqualification. Evolving Jurisprudence 15. In the case of Dr. Mobashir Hassan v Federation of Pakistan[9] a seventeen-member Bench of this Court had opined that Article 62(1)(f) of the Constitution is not self-executory. Somewhat the same view was expressed by raising the following rhetorical questions in the case of Ishaq Khan Khakwani v Mian Muhammad Nawaz Sharif[10] by a seven-member Bench of this Court:[11] '(a) as to which Court will be competent to make such declaration or to pass an order convicting a member of parliament; (b) what will be the procedure adopted by such Court for rendering such declaration/conviction; (c) what will be the standard of proof required for making such declaration or order of conviction; (d) as to who will have locus standi to seek such declaration/conviction.' 16. In the Ishaq Khan Khakwani case an additional note was written by Jawwad S. Khawaja, J who had observed, 'which Court will have jurisdiction to make the declaration or conviction envisioned by Articles 62 and 63 will also need to be decided.'[12] And, Asif Saeed Khan Khosa, J in his additional note emphatically and categorically declared that who 'is sagacious, righteous and
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non-profligate and honest and ameen' cannot be determined, by a court of law; his well articulated opinion stated, as under:[13] 'Whether a person is 'sagacious' or not depends upon a comprehensive study of his mind which is not possible within the limited scope of election authorities or courts involved in election disputes. The acumen or sagacity of a man cannot be fathomed. The same is true of being 'righteous' and 'non-profligate'. These factors relate to a man's state of mind and cannot be properly encompassed without a detailed and in-depth study of his entire life. It is proverbial that Devil himself knoweth not the intention of man. So, why to have such requirements in the law, nay, the Constitution, which cannot even be defined, not to talk of proof. The other requirement qua being 'honest' and 'ameen' have a clear reference towards the Holy Prophet's (p.b.u.h.) attributes as 'Sadiq' and 'Ameen'. This as well as other requirements envisaged by the preceding clauses of Article 62, if applied strictly, are probably incorporated in the Constitution to ensure that only the pure and pious Muslims (living upto the standard of a prophet of God Almighty) should be elected to our Assemblies so that, as provided in the Preamble, the sovereignty of God Almighty could be exercised by them in the State of Pakistan as a sacred trust. But, instead of being idealistic, the Constitution of a country should be more practicable. The line of prophethood has long been discontinued and now we are left with sinful mortals. The political arena in our country is full of heavyweights whose social and political credentials outweigh their moral or religious credentials. Even the electorate in our country has also repeatedly demonstrated their preference for practical wisdom and utility over religious puritanism. Thus, the inclusion of unrealistic and ill-defined requirements in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves.' The Sami Ullah Baloch case 17. The pertinent observations made and questions raised in the cases of Dr. Mobashir Hassan (2010) and Ishaq Khan Khakwani (2015) were ignored and neither case was even referred to in the case of Sami Ullah Baloch; all the more surprising since it was heard by a smaller five-member Bench as opposed to the larger Benches, respectively of seventeen and seven judges, just a few years earlier. The judgment in the case of Sami Ullah Baloch (2018) set out what it was deciding, as under: 'All these connected matters seek a common relief, namely, an authoritative pronouncement about the effect of provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan ("Constitution"). The crucial question raised is whether the incapacity imposed by Article 62(1)(f) of the Constitution upon a person interested to contest an election to a seat in the National Assembly or Senate ("Parliament"), 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). This question is posed because Article 62(1)(f) of the Constitution does not stipulate the duration of incapacitation of a judgment debtor under a judicial declaration on one or more of the aforementioned grounds for contesting an election to a seat in Parliament.'[14] And, the Sami Ullah Baloch case proceeded to decide: '... that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect.'[15] It is not clear what was meant by the aforesaid words - so long as the declaratory judgment ... remains in effect. These words become inexplicable when a final decision had been given by this Court. Probably, to clarify this ambiguity Sh. Azmat Saeed, J added a separate concurring opinion stating 'that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity.' [16]
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Section 232(2) of the Elections Act, 2017 18. To redress the unexpected interpretation of Article 62(1)(f) of the Constitution, and the consequences derived thereof, Parliament added section 232(2) to the Elections Act. It legislated that the disqualification under Article 62(1)(f) shall be for a period not exceeding five years and that section 232(2) will prevail over any decision of the Supreme Court, which would include the decision in the case of Sami Ullah Baloch. Section 232(2) of the Elections Act which has not been challenged before this Court nor was it challenged after publication of the abovementioned Public Notices meaning thereby that neither any political party nor any citizen wanted to contest it. Fundamental Rights in the Constitution 19. Article 8(2) of the Constitution provides that 'The State shall not make any law which takes away or abridges the rights' conferred by or recognised as Fundamental Rights.[17] The Fundamental Right incorporated in Article 17(2) entitles a citizen to 'form or be a member of a political party'. This Court has held that Article 17(2) includes the right to participate in the political process and to contest elections in the cases of Benazir Bhutto v Federation of Pakistan[18] and Javed Jabbar v Federation of Pakistan,[19] where this Court held, that: '[The] right to contest an election is not only a statutory but also a fundamental right conferred by Chapter 1 of Part II of the Constitution... Such right is guaranteed under Article 17(2) of the Constitution and has been recognized as such in Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994.' More recently, in the case of Election Commission v Pakistan Tehreek-e-Insaf,[20] it was held, that: 'The Fundamental Right enshrined in Article 17(2) of the Constitution secures the right to form political parties. If members of political parties are not allowed to participate in intra-party elections, their Fundamental Right of putting themselves forward as candidates, contesting elections and voting for the candidates of their choice is violated. To hold otherwise would render Article 17(2) of the Constitution, and the judgment in the case of Benazir Bhutto v Federation of Pakistan case, meaningless and ineffective.' 20. The decision in the Sami Ullah Baloch categorized Article 17(2) and Article 62(1)(f) to have 'equal standing'.[21] With respect we do not agree that both have equal standing. Article 17(2) of the Constitution is a Fundamental Right whereas Article 62 prescribes who is qualified to contest elections. If any provision of the Constitution has the effect of curtailing or abridging any Fundamental Right it must not be interpreted to undermine the Fundamental Rights. Clauses (d), (e), (f) and (g) of Article 62(1) of the Constitution do not state that the disqualification of a candidate will be permanent. If clause (f) of Article 62(1) of the Constitution is read to mean that it imposes a permanent or lifetime disqualification then clauses (d), (e) and (g) too can be interpreted in like manner. Applying the decision in the case of Sami Ullah Baloch would mean that anyone working against the integrity of the country or opposed to the ideology of Pakistan would be disqualified for life, which would conflict with clause (g) of Article 63(1) which only disqualifies for a period of five years from the date the offender has served out his imprisonment. The decision in Sami Ullah Baloch has rendered two provisions of the Constitution contradictory and irreconcilable. If Parliamentarians wanted to permanently disqualify those not compliant with the provisions of Article 62(1)(d), (e), (f) or (g) they did not state this. Neither the High Courts nor the Supreme Court can rewrite any law, much less the Constitution, nor can they insert anything therein. The Constitution was carefully crafted by its framers and the domains of the Judiciary and that of the Legislature were kept separate. The High Courts and the Supreme Court may strike down any law which is unconstitutional, but they are not empowered to legislate.
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21. The decision in Sami Ullah Baloch had equated a declaration made by a court of civil jurisdiction, with regard to civil rights and obligations, with a declaration to be made under clause (f) of Article 62(1) of the…
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