ISLAMABAD: Justice Yahya Afridi of the Supreme Court has observed that the life ban under Article 62(1)(f) of the Constitution in the 2018 Samiullah Baloch case cannot be nullified by introducing Section 232 in the Election Act 2017 through a simple legislation. Instead, a constitutional amendment is required to set aside the ban, he added.

An ordinary legislation cannot nullify a judgement rendered by a constitutional court while interpreting Article 62(1)(f), Justice Afridi observed in an additional note he issued on Monday to explain why he disagreed with the Jan 8, 2024 majority judgement that scrapped the court’s 2018 judgement by a majority of six to one.

The 2018 Samiullah Baloch case had permanently shut the doors of parliament for lawmakers disqualified under Article 62(1)(f) of the Constitution for not being ‘honest and righteous’.

The seven-judge bench had taken up a number of appeals moved by appellants who were disqualified from contesting the elections or their nomination papers were rejected.

In dissenting note, Justice Afridi says ordinary legislation cannot nullify constitutional court’s verdict

In his dissent note, Justice Afridi explained that the period of disqualification under Article 62(1)(f), as determined by the apex court in the Samiullah Baloch case, would prevail over the five-year disqualification period under the Elections Act 2017.

Article 62(1)(f) notably did not specify a time period for disqualification, Justice Afridi said, adding that in contrast, the amended Section 232(2) of the Elections Act prescribed a time period for a disqualification. The absence of a specified period of time for the disqualification envisaged in Article 62(1)(f), “indicated a deliberate choice by the framers of the Constitution” not to define the specific duration for disqualification under this provision.

Any attempt to impose a time limit to the effect of Article 62(1)(f), such as stipulating a maximum period of five years, would require a constitutional amendment, rather than introducing it through ordinary legislation, Justice Afridi observed.

It is imperative to recognise that a provision introduced through ordinary legislation cannot supersede the clear mandate provided in the Constitution. Therefore, the amended Section 232(2) of the Elections Act, by imposing a duration for disqualification of the nature of Article 62(1)(f), contradicts the said constitutional provision, Justice Afridi said.

Justice Afridi underscored that original jurisdiction of Article 184(3) of the Constitution was an extraordinary jurisdiction not usually seen in other constitutions, vesting the apex court with the authority to “come to the rescue of the poor and the needy in matters of public importance involving the enforcement of the fundamental rights enshrined in the Constitution”.

While exercising its original jurisdiction under Article 184(3), the Supreme Court ought to have been judicially cautious, not to meddle in political matters, more so, when its declaration would lead a person disqualified by a solitary declaration without an opportunity of legal redressal. “However, I have no manner of doubt that the wrong done to the intervener should not be made basis for rendering Article 62(1)(f) to be redundant,” Justice Afridi said.

Justice Afridi said the court should be mindful that overruling a decision on a point of law should not appear to be a game of numbers in favour of the ruling bench, rather efforts should be made to conserve the question already decided and settled by a court, unless there was a glaring error in the judgement under review.

Stare decisis (the legal principle of determining points in litigation) requires judges to give “sober second thought” to overruling precedent irrespective of the reasoning behind the decision.

In all fairness, even if the court disagrees with the reasoning rendered in the Samiullah Baloch case, Justice Afridi said, he would find that it would not be legally proper to discuss and overrule the same, when the conclusion drawn

in the said judgement was in conso-nance with the settled principles already interpreted by the Supreme Court in its precedents.

Justice Afridi said the lack of qualification/disqualification, as provided under Article 62(1)(f), was not only clearly live, but most certainly self-executory. In fact, declaring Article 62(1)(f) non-executory by the majority ruling would most certainly render the very provision redundant, and that would be an affront to the most basic principles of interpretation of constitutional provisions, Justice Afridi concluded.

Published in Dawn, March 26th, 2024