Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Sajjad Ali Shah, Mian Saqib Nisar, Umar Ata Bandial, Sh.

Azmat Saeed Title:(1) Sami Ullah Baloch (2) Chaudhry Atta ur Rehman (3) Moulvi Muhammad Hanif and Others vs (1) Abdul Karim Nousherwani & others (2) Election Commission of Pakistan, Islamabad (3) Election Tribunal Balochistan thr. Additional Registrar, Quetta & others Case No.:CIVIL APPEAL NO.233/2015, CIVIL MISC. APPEAL NO.175/2017 IN CONST. PETITION NO.NIL OF 2017, CIVIL MISC. APPLICATION NO.1535/2013 IN CIVIL APPEAL NO.191-L/2010, CIVIL MISC. APPLICATION NO.1536/2013 IN CIVIL APPEAL NO.409/2010, CIVIL MISC. APPLICATION NO.3470/2013, CIVIL REVIEW PETITIONS NO. 81/2013, 86/2013, 87/2013, 206/2011, 218/2013 IN CIVIL PETITIONS NO.492, 493/2013, 494/2013, 1485/2011 AND 1033/2013, CIVIL REVIEW PETITION NO.223/2013 IN CIVIL MISC. APPLICATION NO.3470/2013 IN CIVIL APPEAL N Date of Judgment:2018-04-13 Reported As: PLD 2018 Supreme Court 405, 2018 PSC 603, 2018 SCP 1175 Result: N/A Judgment UMAR ATA BANDIAL, J. - 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. Article 62(1)(f) of the Constitution provides as follows: "62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Sh oora (Parliament) unless

(a) ...

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(b) ... (c) ... (d) ... (e) (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and (g) ..." In the absence of a fixed period of incapacity of a candidate for election to a seat in Parliament being specified for complying the requirements under Article 62(1)(f) of the Constitution, one point of view urged before the Court is that such incapacity ought to be construed as perpetual. The other point of view canvassed before the Court is that the period of disqualification under Article 63 of the Constitution for the character flaw of moral turpitude ought to be construed along with Article 62(1)(f) of the Constitution. In this regard Article 63(1)(h) of the Constitution creates a bar for a period of five years for contesting an election after serving no less than a two year sentence for conviction for an offence involving moral turpitude. The said disability ought to be construed along with Article 62(1)(f) of the Constitution to limit the period of incapacity imposed by the latter provision to five years as well. 2. Article 113 of the Constitution makes the qualifications under Article 62 of the Constitution and disqualifications under Article 63 of the Constitution applicable to the candidates for election to a seat in the Provincial Assemblies. Therefore, the Constitution has applied the same criteria of eligibility for election to a seat in all Constitutional Legislatures together referred in this opinion as 'Parliament'. Article 113 of the Constitution provides as follows: "113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to "National Assembly" were a reference to "Provincial Assembly"." Submissions by the Counsel: 3. Mr. Babar Awan, Sr. ASC appearing before this Court (in Civil Appeal No.233 of 2015) has supported the lifetime bar under Article 62(1)(f) of the Constitution on the eligibility of a candidate to contest election to Parliament. He argued that the Constitution and the law contemplate permanent and transient disqualifications. Thus, Article 62(1) (d), (e), (f) and (g) of the Constitution do not fix a time limit for the incapacity of a candidate to contest an election. Within this category of provisions Article 62(1)(f) ibid above requires that a declaration by a Court of law indicating delinquent conduct be in existence before incapacity upon a candidate for election can be imposed thereunder . The remaining three clauses do not provide for any such mechanism. These provisions were added to the Constitution pursuant to Islamic provisions and whenever attracted to a case they create a perpetual bar. He read from the verses of the Holy Qur'an to emphasise the meaning of the expression "Ameen" used in Article 62(1)(f) of the Constitution. These verses include Surah Nisah verse 58 and Surah Aal-e-Imran verse 75. As a threshold for the requirement of honesty, he referred to Surah Al- Ma'aidah verse 119; Surah At' Taubah verse 119; Surah Al Ahzab verse 23, 24 and 35. He pointed out further that the permanent bar created under Articles 62(1)(f) of the Constitution was endorsed by Parliament in the Constitution (Eighteenth Amendment) Act, 2010 ("18th Constitutional Amendment"). No omission is attributable to the Constitution nor reading into a provision thereof is permissible under the settled rules of Constitutional interpretation. If at all the period of embargo under Article 62(1)(f) of the Constitution is to be relaxed, then such an outcome can follow only from a Constitutional amendment by the Parliament. 4. Mr. Sikandar Bashir Mohmand, learned ASC appearing for Jehangir Khan Tareen, Ex-MNA has argued against the imposition of a permanent embargo under Article 62(1)(f) of the Constitution on the eligibility of a candidate for election to Parliament. He contended that the absence of a specified term of the bar on eligibility in the said constitutional provision made the same amenable to interpretation and that a life time bar amounted to an excessive restriction on the fundamental right guaranteed under Article 17(2) of the Constitution. That the principle of proportionality ought to be applied to Article 62(1)(f) of the Constitution in the light of the embargo on eligibility for election provided in similar provisions. Particular emphasis was placed on Article 63(1)(h) of the

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Constitution wherein more serious misconduct by a candidate for election who has been convicted and sentenced for an offence involving moral turpitude has been subjected to an embargo on contesting election to Parliament for a fixed term rather than permanently. Moreover, gross acts of dishonesty catered by Section 15 of the NAB Ordinance and similar acts by Section 100 of the Representation of the People Act, 1976 ("ROPA") provide for an embargo for fixed periods. In these circumstances, the lack of specification of the duration of the bar created under Article 62(1)(f) of the Constitution ought not be given permanent effect. Under the principle of proportionality the Court ought to impose a bar that is commensurate with the wrong committed by a candidate for election. In this respect, the Court had discretion to fix the term but unfitness to contest for five years should be treated as an outer limit. He read from Section 100 of the ROPA which creates a disqualification of five years for exceeding the limit of election expenses and Section 15 of the NAB Ordinance for imposing disqualification for ten years after release from prison on conviction for offences of corruption and corrupt practices. On the other hand, the inadvertent non-disclosure of certain assets by a candidate without any intention to deceive the authorities or the public appears to be a trivial misdemeanor in comparison, yet the Courts have under Article 62(1)(f) of the Constitution applied a permanent time bar in consequence thereof. 5. Ms. Asma Jehangir , Sr. ASC appearing for Rai Hassan Nawaz Ex-MNA explained that her client was disqualified under Article 62(1)(f) of the Constitution for not declaring his inherited property in his statement of assets. This is because the said asset was held in the name of a family company . Her client derived no advantage from the said non-disclosure but has been subjected to a life time bar for misdeclaration and concealment of his assets. She argued that Article 62(1)(f) of the Constitution is vague in its language for lacking a specific period of incapacitation of a candidate for election and sets an exceptionally high standard of human character to be met by him. She also contended that sagacity and non-profligacy are subjective terms for which determination or quantification can be onerous and irrational. Although the meaning and effect of these terms was a matter for Parliament to determine, yet the Courts have the authority and power to apply the rule of proportional ity in order to avoid the harsh consequence of permanent incapacitation of a candidate under Article 62(1)(f) of the Constitution. She submitted that Section 99(1)(f) of the ROP A provides the same substantive qualifications as expressed in Article 62 of the Constitution but these do not create a permanent embargo. Consequently , for the lack of the same qualification to contest election for the Parliament, there are divergent provisions in the statut e and in Article 62(1)(f) of the Constitution. The Constitutional mandate in Article 62(1)(f) of the Constitution ought to be construed and enforced in the light of the aforesaid statutory provisions. 6. Sardar Muhammad Aslam, Sr. ASC appearing for the two disqualified appellants in two Civil Appeals (No.476 of 2014 & No.204-L of 2016) respectively , submitted that the commission of the wrong, namely , the misdeclaration of assets did not cause an injury or loss to any person and ought to be treated lightly on the principle of Touba (repentance) and Maghfirat (forgiveness), which are the foundations of Islamic law and jurisprudence. He was, however , candid to accept that except for submitting their affidavits in Court, his clients had not made any expression of remorse, regret or repentance before the concerned authorities or the public. 7. Learned amicus curiae, Mr. Munir A. Malik, Sr. ASC stated that a settled principle of interpretation of the Constitution is that it should be read as a whole. The chapter of fundamental rights lies at the heart of the Constitution and the right to contest elections emanates therefrom. Articles 62 and 63 of the Constitution are not preceded by a non-obstante clause, therefore, these provisions must be read in a manner that advances the fundamental right to contest election and not curtail the same. Furthermore, Articles 62 setting out qualifications and Article 63 laying down disqualifications for election to a seat in Parliament ought to be read together as these provisions are complementary to each other . According to the textual history of the Constitution, the provisions, inter alia, of Article 63(1)(g) and (h) belong to a set of disqualifications that are based on past delinquent conduct of a candidate. Prior to the 18 Constitutional Amendment, the conviction for such delinquent conduct resulted in disqualification without a time limitation, hence these were construed as being of permanent ef fect. 8. The 18th Constitutional Amendment, however , introduced a time limit in respect of both these disqualifications. Article 63(1)(h) of the Constitution is relevant for present purpose. After the 18th Constitutional Amendment, it lays down that a person who is convicted and sentenced to more than two years imprisonment for an offence involvingth

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moral turpitude stands disqualified to contest and election for a period of five years after the date of his release from prison. The 18th Constitutional Amendment has similarly made the incapacity cast upon a cand idate for election under Article 62(1)(f) to be contingent upon an adverse declaration by a Court of law being made against the candidate. Learned amicus curiae submits that this step dilutes the rigours of the sanction under Article 62(1)(f) of the Constitution which otherwise does not fix a time limit for the incapacity imposed by it. The learned amicus curiae has argued that according to his understanding, every act of dishonesty conceivably falls within the ambit of moral turpitude. Therefore, dishonesty under Article 62(1)(f) of the Constitution is a subset of moral turpitude in Article 63(1)(h) thereof. The imposition of a lifetime bar on contesting election to Parliament under Article 62(1)(f) of the Constitution would render Article 63(1)(h) thereof redundant. Therefore, the two provisions of the Constitution ought to be construed to derive substance and meaning from each other . Consequently , the period of incapacity under Article 62(1)(f) of the Constitution ought to be limited to the period of disqual ification imposed on a candidate for election under Article 63(1)(h) of the Constitution. 9. Syed Ali Zafar , learned ASC also appe aring as amicus curiae argued that the present exercise is essentially a journey to discover the silence of the Constitution. This is because no time limitation has been prescribed for the incapacity imposed on a candidate by Article 62(1)(f) of the Constitution. From the historical perspective, the disqualification under Article 62(1)(f) of the Constitution is permanent which represents one extreme; on the other hand, the other extreme perspective can be that disqualification is for one election term, that is five years. However , he advocated a third approach for fixing a time period between those two extreme s to be determined by the Court as it deems fit. The learned amicus curiae stated that in doing so, the Court will be adopting the structural methodology of constitutional interpretat ion. He then referred to six modalities of construction of constitutional provisions as per Philip Babbitt in his book "Constitutional Interpretation " referred to in Al-Jehad Trust vs. Federation of Pakistan (PLD 1997 SC 84). By following the structural modality for interpretation of the constitutional provisions in the present case, the Court would give due importance to the fundamental right of citizens to contest election under Article 17 of the Constitution. Moreover , qualifications for and disqualifications to contest election for a seat in Parliament under Articles 62 and 63 of the Cons titution in essence deal with a common subject and therefore the two provisions are complementary to each other and ought to be read together. A person who has committed a criminal offence involving moral turpitude is permitted to contest election after a lapse of five years of his release from prison, therefore, the constitutional intention cannot be to inflict a graver punishment of a life time bar to contest election upon a person who has committed a dishonest act. Finally, he submitted that by omitting to prescribe a period of incapacity for lack of qualification of a candidate for election, Article 62(1)(f) of the Constitution purposefully left the extent of the exclusionary bar to the discretion and judgment of the Court. 10. At the end of the proceedings, learne d Attorney General for Pakistan also assisted the Court with his succinct and candid submissions. He submitted that omission by the Constitution to provid e a time limit for the incapacity imposed under Article 62(1)(f) of the Constitution cannot mean that such incapacity is of permanent character . Such a result would deprive a person of his fundamental right under Article 17 of the Constitution. Furthermore, the effect of a judicial declaration under Article 62(1)(f) of the Constitution has to be weighed on a case to case basis. A case of breach of trust differs from forgery or a misdeclaration of fact made under oath. However , he accepted that a judicial declaration of a person being dishonest or not ameen under Article 62(1)(f) of the Constitution does not end with the efflux of time. Finally , he stated that it is only for the Legislature to put a time limit on the period of incapacity suffered by a candidate under Article 62(1)(f) of the Constitution in consequence of an adverse judicial declaration. Until such time as Parliament intervenes, the incapacity to contest elections shall continue under Article 62(1)(f) of the Constitution for so long as an adverse judicial declaration against a candidate is in force. Analysis: 11. Before we proceed to examine the respective contentions of the learned counsel appearing before us, it would be useful to reproduce the provisions of Articles 62 and 63 of the Constitution as originally framed in the year 1973 ("1973 Constitution") , followed by their version after amendments expanding the list of qualifications and disqualifications laid down therein for becoming or remaining a Member of Parliament:

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1973 Constitution: "62. 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." "63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if -- (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is so disqualified by Act of Parliament. (2) If any question arises whether a member of Parliament has become disqualified from being a member , the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant." 12. During the Martial Law regime of General Zia-ul-Haq, amendments were made in 1973 Constitu tion including some that were meant to supplement the Islamic content of the Constitution. In the present context, the President' s Order No.14 of 1985 introduced, inter alia, new qualifications and disqualifications for membership to Parliament. These are reproduced below: 1985 Amendment: "62. 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 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 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 well 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)." The new disqualifications for election incorporated by the President' s Order No.14 of 1985 in Article 63 of the Constitution recapitulated the prescription s made in certain existing statutes but without emphasizing the Islamic law: "63.(1) A person shall be disqualified from being elected or chosen as, and from being , a member of the Majlis-e - Shoora (Parliament), if--

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(a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or (g) he is propagating any opinion, or acting in any manner , prejudicial to the Ideology of Pakistan, or the sovereignty , integrity or security of Pakistan, or morality , or the maintenance of public order , or the integrity or independence of the judiciary of Pakista n, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or (h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (j) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes ef fect; or Provided that the disqualification under this paragraph shall not apply to a person-- (m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or (n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: (i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator , until the expiration of six months after it has so devolved on him; (ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or (iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or Explanation.-- In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply. (o) he holds any of fice of profit in the service of Pakistan other than the following of fices, namely:- (i) an of fice which is not whole time of fice remunerated either by salary or by fee; (ii) the of fice of Lumbardar , whether…

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