News Analysis: Law alone won’t neutralise SC ruling, say experts
According to legal experts, the Elections (Amendment) Bill 2023 passed by the National Assembly on Sunday may not suffice on its own to reverse the lifetime disqualification of politicians under Article 62(1)(f).
Barrister Salahuddin Ahmed, former president of the Sindh High Court Bar Association, said on Twitter that while the Supreme Court interpreted [Articles 62 and 63] absurdly by holding lifetime disqualification, a constitutional amendment will be needed to change it as long as the judgment is in effect.”
As he explained, the government may be seeking to “have the law challenged in [the] Supreme Court before a larger bench which can override the earlier decision.” In addition, he explained, “Parliament cannot override a court’s interpretation of [the] constitution, as that would usurp judicial authority.” To achieve a different outcome, [the] constitution would have to be amended.”
According to Abdul Moiz Jaferii, a lawyer in the National Assembly, the amended law provides clarity to previous constitutional ambiguities. There had been no clear sanction before, but now parliament has legislated one.
“This is a clear step forward because the period of disqualification varied in accordance with the constitution and what was left unsaid.”
Salahuddin Ahmed’s analysis, however, indicates that things aren’t so simple.
According to Jaferii, there has already been a constitutional interpretation by the Supreme Court regarding the consequences of not being wise and righteous.
A piety-laced decision was rendered by the current chief justice during a hybrid push; he later termed the same section of the constitution draconian when challenged by Faisal Vawda.”
“With the Supreme Court’s interpretation of that particular constitutional position now on the field, either the decision needs to be undone or clarity must be added to the constitution, not just the law,” says Jaferii.
Aaminah Qadir, a constitutional lawyer, said the lifetime ban is flawed in principle, but it doesn’t mean that parliament must overrule court decisions.
In addition, it undermines the separation of powers doctrine, which asserts that each institution has supremacy. Accordingly, the amendment should come through the courts.”
PILDAT President Ahmed Bilal Mehboob told Geo’s Shahzad Iqbal on Naya Pakistan: “While the lifetime disqualification of Nawaz Sharif and Jahangir Khan Tareen was wrong, if the Supreme Court rules in their favor, then their status will become constitutional.”
It is not possible, therefore, to reverse the lifetime disqualification through a simple act of parliament; a constitutional amendment is required.”
In his opinion, the matter will go to court – a simple law passed by parliament cannot overturn the lifetime disqualification judgment. It will also be struck down by the Supreme Court.
The case can be viewed in two ways, according to Rida Hosain: “The Supreme Court determined in the Samiullah Baloch case that since Article 62(1)(f) does not specify a time period for disqualification, the clear constitutional intent was to make it permanent.
As this judgment was based on an interpretation of the Constitution, some argue that it cannot be undone without amending the Constitution. In order to do so, the government would need two-thirds majority support, which it does not have.
However, there is an argument that an act of parliament can address the Constitution’s silence. The Supreme Court will decide once again which argument prevails.”
If the amendment bill goes to court, what is the point of passing it by the National Assembly?
As a result, the Supreme Court will have greater clarity in reviewing and overturning the religiously rooted decision authored by Justice Bandial – which is currently being reviewed by the Bandial court”, said Moiz Jaferii, adding that the bill is a sign from the parliament.
A Supreme Court declaration is also contradicted by this decision. Today, it doesn’t matter whether the declaration is absurd or not, since it will greatly facilitate a review of the original decision that led us here.”
The process could be thus, according to Jaferii: “If the currently suspended Supreme Court Practices and Procedure Bill/Act ultimately becomes law, and if the Supreme Court Review Act survives the current challenge sub judice in the Supreme Court, it could pave the way for a review or appellate decision more in line with the parliamentary intent now expressed”.
According to Aaminah Qadir, the government is simply trying to close the loopholes in the constitution by correcting a mistake they made in the past. However, there are many legal questions raised by this. There is no way to amend the constitution through various legislations; you cannot pass a bill that interprets the constitution.
As a matter of law, the correct way to deal with this would be either by amending the constitution [requiring two-thirds majority in parliament] or by challenging it again in court.
Is it possible for the Supreme Court to overturn the bill if it is challenged in court? “Parliament has somehow attempted to circumvent [the SC’s lifetime disqualification judgment] by stating in the amendment that it stands, regardless of any law or decision in the field,” says lawyer and journalist Muneeb Farooq. However, this amendment can be challenged in court at any time.
The Supreme Court has already interpreted a specific article, so it will be interesting to see how it will interpret this article.”
According to Jaferii, the chief justice does not have sufficient capital to strike down this law either as it is inconsistent with a Supreme Court ruling.
The issue isn’t a legal one; it’s a political one.”
According to Aaminah Qadir, there are also issues regarding Articles 62 and 63 at play here: “This also raises questions about how you interpret the supremacy of the constitution.”
“If it is assumed that disqualification under Article 62(1)(f) is lifetime, two interpretations can be drawn from that: first, the legislature deliberately left it this way so that the courts could correct or for the gaps to be brought out and addressed through the different structures in the separation of powers trichotomy.
A constitutional amendment would be required in order to determine whether the disqualification is lifelong. Another interpretation is that the constitution has not specified whether the disqualification is permanent.
The matter could have been resolved long ago, according to her.
Over the past decades, the ambiguity added to Articles 62 and 63 by Ziaul Haq, various military dictatorships, and finally the Nawaz and PPP regimes has benefited parliamentarians.
“They could have clarified what sadiq and ameen means, removed it from the constitution altogether, or clarified what sadiq and ameen means through the courts.”