News analysis: ‘SC ruling cannot be neutralized by law alone’

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Former Prime Minister Nawaz Sharif speaks at a press conference in Islamabad, September 26, 2017. — Reuters
Former Prime Minister Nawaz Sharif speaks at a press conference in Islamabad, September 26, 2017. — Reuters

KARACHI: A constitutional amendment may be needed to reverse the lifelong disqualification of politicians under Article 62(1)(f), and the Elections (Amendment) Bill 2023 passed by the National Assembly on Sunday has passed itself may not be sufficient to do this. say lawyers.

In response to a question on Twitter, former president of the Sindh High Court Bar Association, Barrister Salahuddin Ahmed, said that while the “interpretation of [Articles 62 and 63 of the constitution] by the Supreme Court to establish life disqualification was absurd… as long as the verdict is in the field, it will require a constitutional amendment to change it.

He feels that the government may be trying to “challenge the law”. [the] SC for a bigger bank that can revoke the earlier decision.” He further explained: “Parliament cannot simply override a court’s interpretation [the] constitution, because it would take over the judicial function. So it should be adjusted [the] constitution to arrive at a different outcome.”

Lawyer Abdul Moiz Jaferii tells The news that the amended law [passed by the National Assembly] “adds clarity to what was previously a constitutional void. It provides for a clear sanction that parliament has now issued where there was none before.

“Because the period of disqualification varied by what was in the constitution and what wasn’t said, this is a clear step forward.”

However, things are not so simple, as Salahuddin Ahmed’s analysis shows.

Jaferii said: “The problem is that a constitutional interpretation has already been given by the Supreme Court regarding the consequences of not being astute and just.

“That pious decision was made by the current chief justice in the midst of a hybrid push; he later called the same part of the constitution draconian when Faisal Vawda challenged it.”

Jaferii agrees that “with a Supreme Court interpretation of that particular constitutional position now in the field, that decision needs to be overturned or clarity added to the Constitution and not just the law.”

Constitutional lawyer Aaminah Qadir said: “First of all, the lifetime ban may be flawed. However, this does not lead to the conclusion that the decisions of the courts are overruled by bills in parliament.

This greatly undermines the credibility of the apex court, and also the separation of powers doctrine that assumes that every institution is supreme. This also leads to the conclusion that the amendment must go through the courts.”

To talk with Geos Shahzad Iqbal at Naya Pakistan on Sunday, PILDAT President Ahmed Bilal Mehboob said, “Although the lifelong disqualification of Nawaz Sharif and Jahangir Khan Tareen was wrong, its status will become constitutional if the Supreme Court issues a verdict.

“So the lifetime disqualification has become part of the constitution. Its reversal is not possible by a simple act of parliament; it requires a constitutional amendment.”

He believes the case will end up in court – “the passing of a simple law by parliament cannot end the life disqualification judgment; this law will also be scrapped by the Supreme Court”.

Attorney Rida Hosain believes that there are two ways to look at the situation at hand: “In the Samiullah Baloch judgment, the Supreme Court ruled that since Article 62(1)(f) does not specify a time limit for disqualification, the clear constitutional intent is that it should be permanent.

One reasoning is that since the core of this judgment was an interpretation of the Constitution, it can only be reversed by a constitutional amendment. This requires a two-thirds majority, which the government does not have.

On the other hand, there is an argument that the silence of the Constitution can be addressed through an Act of Parliament. Again, which argument prevails for the Supreme Court to decide.”

What was the point, then, of the National Assembly passing the amendment bill if the bill ended up in court?

Moiz Jaferii says “what is being gained here is the clarity the Supreme Court needs to review and overturn Judge Bandial’s religiously rooted decision — through legislation the validity of which the J Bandial court is currently examining.” adding that [the bill] “is an indication from parliament.

And it is currently inconsistent with a Supreme Court statement. The fact that the statement is absurd matters little today, but this legal ruling will greatly facilitate the review of the original decision that led us here in the first place.

The process, according to Jaferii, could be as follows: “if the currently suspended Supreme Court Practices and Procedures Act/Act eventually becomes law, and if the Supreme Court Review Act survives the current challenge sub judice in the Supreme Court, this law could pave the way for a review or appeal decision more in harmony with the parliamentary intention now expressed”.

For Aaminah Qadir, the government is “just trying to correct the mistakes they made [historically] made: trying to clarify the loopholes in the constitution. But this raises many legal questions. You cannot change the constitution through different pieces of legislation; you cannot pass a bill to interpret what the constitution says.

“Now, the right way – legally speaking – to handle this would be through either a constitutional amendment [which needs two-thirds majority in parliament] or by being challenged again in court.”

Can the Supreme Court quash the bill if challenged in court? Journalist and lawyer Muneeb Farooq says that “in one way or another parliament has tried to get around [the SC’s lifetime disqualification judgment] by stipulating in the amendment that it is valid regardless of any law or ruling in the field, but this amendment can always be challenged in court.

“And there will be a validity question because the Supreme Court had already interpreted a certain article. It is therefore interesting to see how the Supreme Court will respond to that.”

However, Moiz Jaferii thinks that while “the chief justice could also simply strike down this law because it violates a Supreme Court statement, he doesn’t have enough capital left to do that”.

He adds: “This is not a law; it’s political.”

Here, too, larger questions arise about Articles 62 and 63, says Aaminah Qadir: “This also raises questions about how you interpret the supremacy of the constitution.

“If it is assumed that the Constitution does not make it clear whether disqualification under Article 62(1)(f) is for life, two interpretations may follow: First, it has been deliberately left that way by the wisdom of the legislature for the courts correct or bring out and address the gaps through the different structures in the trichotomy of the separation of powers.

“The other interpretation is that the constitution has not specified whether the disqualification is for life, and so it can only be determined by a constitutional amendment.”

She adds that this issue could have been resolved long ago.

“The ambiguity added to Articles 62 and 63 by Ziaul Haq, by the various military dictatorships and then by the Nawaz and PPP regimes has benefited parliamentarians over the past few decades.

“If they had chosen to do so, they could have clarified what it means to be ‘sadiq and ameen’. They [could have] removed from the constitution altogether. Or the courts could clarify the qualities that indicate what it means to be sadiq and ameen.”

Disclaimer: The views expressed in this piece are those of the author and do not necessarily reflect’s editorial policies.

Originally published in The News

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