February 20, 2024
By Xari Jalil
LAHORE
Judges are not equipped to make moral judgments, stated Chief Justice Qazi Faez Isa in a verdict he issued earlier this week. In his statement, he added that judges lacked the authority to definitively rule on ambiguous ethical questions, as they cannot easily separate right from wrong – especially since human characteristics do not remain the same either.
The landmark decision saw the Supreme Court backtracking on its 2018 ruling that imposed lifelong bans on politicians disqualified under Article 62(1)(f).
The bench included Chief Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarrat Hilali.
On January 8th, 2024, a 6-1 majority of the Supreme Court overturned its 2018 judgement in a detailed analysis. That previous ruling had permanently disqualified any politician deemed “not honest and righteous”, (also known as ‘Sadiq’ and ‘Amin’), under Article 62(1)(f) of the Constitution, effectively barring them from ever seeking elected office again.
The new decision argues that the 2018 interpretation, based on the ‘Samiullah Baloch’ case that same year, exceeded the scope of the article itself, as it does not mandate lifetime bans.
In the detailed verdict, Chief Justice Isa emphasized the limitations of judging character. Definitive assessments, he argued, could only be made after death, based on publicly known information, leaving private aspects – both ‘virtuous’ and ‘villainous’ – beyond reliable judgment. He also elaborated on the dynamic nature of character, suggesting individuals lacking desired qualities can acquire them later, while those possessing them can lose them over time. He also highlighted the subjectivity involved, noting that different judges might reach contrasting conclusions about the same individual’s character, based on personal interpretations.
HISTORICAL CONTEXT
On 5 July 1977, when General Muhammad Zia-ul-Haq took the country by force of arms the Parliament and provincial assemblies were dissolved, and the Federal Government and provincial governments were dismissed. Democracy was supplanted by dictatorship and the Constitution was changed to justify it.
It was then that 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 discarding the Constitution, the Revival of the Constitution of 1973 Order, 1985 was presented to the nation as a fait accompli. These changes were made to the qualifications for the membership of Majlis-e-Shoora (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 25 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 30 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 he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament).’
Manipulating the Constitution
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.
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’
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.
ASMA JAHANGIR & ARTICLE 62 (1)(f)
On February 11, 2018, Asma Jahangir termed the article as ‘vague’. Jahangir was representing former Pakistan Tehreek-i-Insaf (PTI) MNA Rai Hasan Nawaz who had been disqualified by an election tribunal over non-disclosure of assets. The five-member bench of the apex court ─ headed by Chief Justice Saqib Nisar and comprising Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah ─ has taken up 17 appeals against the disqualification of lawmakers.
Asma Jahangir said that disqualifications under Article 62 (1)(f) should not be more than five years, and urged the bench to tackle Articles 62 and 63 as interconnected.
She said that before 1985 court orders were not mandatory for the disqualification of a legislator and that making a bachelor’s degree compulsory had also limited the options for voters. She questioned the procedure and court that would declare the fame or character of a person.
Asma Jahangir had stated in her arguments that the parliament should undertake decision-making, not the judiciary, also thereby raising the issue of freedom of the parliament, but, then Chief Justice Saquib Nisar had rejected the impression that the parliament was not free.
The bench had adjourned the hearing till February 12 however, Asma Jahangir passed away due to a sudden cardiac arrest only a day before.