Through the instant constitutional petition, the petitioner, who is an Advocate of this Court, has impugned section 232 of the Election Act, 2017 particularly sub-section 2 thereof which reads:- 'Notwithstanding anything contained in any other provisions of this Act, any 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.'
It has been contended that Section 232(2) of the Act, 2017 is unconstitutional as it cannot override the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973.
2. Heard.
3. In the present case, the main stress of the learned counsel for the petitioner is on the point that the Supreme Court of Pakistan in Sami Ullah Baloch case (PLD 2018 SC 405) and certain other cases has declared the disqualification "permanent" under Article 62(1)(f) of the Constitution, therefore, the newly amended section 232(2) of the Election Act, 2017, reducing the "permanent disqualification" to "five years" is ultra vires of the said Article and may be declared as such. The matter in issue, germane to interpretation of Article 62(1)(f) of the Constitution, has already been dilated upon, considered and addressed by a seven member Bench of the Supreme Court of Pakistan while deciding C.P.No.982 of 2018 titled "Hamza Rasheed Khan v. Election Appellate Tribunal, Lahore High Court, Lahore and others" alongwith other connected petitions, wherein it has invariably been held that:- '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 recognized as Fundamental Rights, 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 and Javed Jabbar v Federation of Pakistan, 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 (0) 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, 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 vFederation 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'. With respect we do not agree that both have equal standing. Article 17(2) of the Constitution is 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), (c) 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 lite, 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.
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 Constitution. The law does not empower a court to make a negative declaration with regard to any of the matters mentioned in the said clause (f), that is, to declare that someone is not sagacious, is not righteous, is profligate, is dishonest or is not ameen. The Constitution does not even disqualify a criminal permanently from contesting elections, either under clause (g) or clause (h) of Article 63(1), therefore, it does not then stand to reason that indeterminate matters in respect of which opinions may vary good character, sagacity, righteousness and honesty - the disqualification would be permanent.
22. Judges do not have the ability to adjudicate indeterminate matters of morality, nor are able to bifurcate morality from immorality, virtue from vice, and then proceed to meticulously weigh them. And, even if they could would the scale used in measuring morality always give the same reading. Human characteristics and qualities seldom remain static; they change even during the course of a single day. Only once a life has been lived out and death has intervened can an opinion be expressed with some certainty, and then too only to the extent of what is publicly known about a person. The good character of an intensely private altruist will be just as unknown as the bad character of an undetected criminal. Someone devoid of the virtues and qualities of Article 62(1)(d), (e) and (f) may also come to acquire them or possessing them proceed to lose them. And who adjudicates would also matter; one Judge may consider that someone is of good character, etc. but another may have the opposite opinion. Matters which are mentioned in clauses (d), (e) and (f) of Article 62(1) are inherently subjective, and may also change. Earthly judges should adjudicate those matters which are discernible, determinable and which the law clearly expounds, and avoid the domain of Heaven.
23. The decision in the Sami Ullah Baloch case did not consider, that which was observed by a seventeen-member Bench in the case of Dr. Mobashir Hassan, that Article 62(1)(f) of the Constitution is not self executory, nor attended to the questions formulated by the seven-member Bench in the case of Ishaq Khan Khakwani, and disregarded what a learned Judge had held, which was that a court cannot give a declaration with regard to whether a person is sagacious, righteous, non-profligate, honest and ameen. The decision in the case of Sami Ullah Baloch also did not consider that Article 62(1)(f) of the Constitution does not: (1) specify the court of law that is required to make the declaration, (2) does not provide the procedure for making the declaration and (3) does not specify the period for which the disqualification is incurred. Whether clauses (d),
(e) and (f) of Article 62(1) were merely aspirational was also not considered.' (Emphasis supplied)
It was further held in the above said judgment that:- '29. The decision in the Sami Ullah Baloch case quoted Qur'anic passages (Al-Ahzab (3), verse 21 and Yusuf (12) verse 54-55) and sought to make a connection therewith. The decision incomprehensibly stated that the Holy Qur'an recognizes the 'temporal significance of the character qualities specified in Article 62(1)(f) of the Constitution'. However, 'No exegete of the Qur'an has interpreted these verses to mean that they are a condition for appointing a person to public office. They only set certain standards that people should aspire to attain.' The renowned jurist Imam Abu al-Hasan 'Ubaydullah al-Karkhi mentions the basic presumption of Islamic law in the following words: 'The affairs of the Muslims are to be construed as upright and proper, unless the contrary is established.' The illustrious jurist Imam Abu Hamid Muhammad al-Ghazali goes a step further in his famous monograph Al-Iqtisad fi al-I'tiqad (Moderation in Belief) and devotes a whole chapter to the qualification and conditions for a Muslim ruler, but states that the lack of these qualities would not delegitimize the ruler.'
30. The Sami Ullah Baloch case also mentioned the concept of forgiveness (touba and maghrirat) but then did not attend to the matter of forgiveness, let alone how and when it would be applicable. Several Qur'anic verses and Prophetic traditions promise great reward for those who show remorse after committing a sin or crime and repent but these were not considered. On the contrary the decision condemned a potential candidate in perpetuity, and shut the door to forgiveness and redemption, and did so by exceeding the limits prescribed in the Holy Qur'an.'
It was finally held that: '33. ...................... The determination in the case of Sami Ullah Baloch and in all those cases in which the returning officers, elections tribunals, the High Courts and this Court had issued declarations pursuant to Article 62(1)(f) of the Constitution and held such disqualification to be permanent are not sustainable.' (Emphasis supplied)
While concluding, the Supreme Court of Pakistan in the above said case overruled the view taken in Sami Ullah Baloch case (PLD 2018 SC 405). For ready reference the said part of judgment is reproduced as under:- 'vi. The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled.' (Emphasis supplied)
4. In this view of the matter, when the period of disqualification from lifetime/permanent has not been affirmed and verdict in case of Sami Ullah Baloch has been revisited by overruling the same in the case supra by the Supreme Court of Pakistan, it can safely be held that the newly added section 232(2) of the Election Act, 2017 has no overriding effect upon Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, because the said provision of law does not provide disqualification for lifetime/permanent, therefore, the Courts including this Court and the Supreme Court are not supposed to rewrite any law, much less the Constitution, nor can insert anything therein. Under Article 189 of the Constitution, any decision of the Supreme Court, to the extent it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan including this Court. Therefore, it is held that section 232(2) of the Election Act, 2017, to the extent of 'period not exceeding five years from the declaration by the court of law in that regard' is not inconsistent with or in derogation of fundamental rights, calling to be declared as such by resorting to Article 8 of the Constitution, which provides:- '8. Law inconsistent with or in derogation of Fundamental Rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
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5. For the foregoing reasons, the constitutional petition in hand having no force and substance stands dismissed.