Pakistan is a strange country where the elected members of Parliament pass self-serving laws for rewarding those who defraud the voters. What makes the situation more painful is the fact that such laws, enacted in utter violation of the supreme law of the land—Constitution of Islamic Republic of Pakistan [“the Constitution”]—are not challenged by the stakeholders, especially the civil society and/or validated by the higher court.
On such instance surfaced on January 8, 2024 when through the predictable order [short] by Supreme Court of Pakistan overturned by 6-1 its earlier five-member bench judgement in Sami Ullah Baloch v Abdul Karim Nausherwani (PLD 2018 SC 405) paving the way for many, facing the life-time disqualification under Article 62(1)(f) of the Constitution to contest the forthcoming elections, scheduled for February 8, 2024.
The dissent by only one judge, Mr. Justice Yahya Afridi, of seven-member bench of the Supreme Court says: “With profound respect, I disagree. For reasons to follow, the extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force. Therefore, the conclusion so drawn by this Court in Sami Ullah Baloch Versus Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed”.
The majority order, detailed reasons to follow, held:
“i. Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan (“Constitution”) is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.
- There is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder, to meet the requirements of the Fundamental Right to a fair trial and due process guaranteed by Article 10A of the Constitution.
iii. The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution.
- Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.
- Until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.
- 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.
vii. Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 promulgated on 26 June 2023, prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and has also made such declaration subject to the due process of law. This provision is already in field, and there remains no need to examine its validity and scope in the present case”.
The beneficiaries of the above judgement of the Supreme Court, among others, will be Mian Muhammad Nawaz Sharif of Pakistan Muslim League (Nawaz)—PMLN—and Jahangir Khan Tareen of Istehkam-e-Pakistan Party (IPP)—both were disqualified for life.
It may be remembered that short order by Supreme Court on February 21, 2018 barring ousted/disqualified ex-premier, Nawaz Sharif, from remaining head of party elicited a heated debate about powers of judiciary and parliament under the supreme law of the land. Many believed that the order had abridged the inalienable, fundamental right given to a citizen under Article 17(2) of the Constitution “to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan”. Proponents of the judgement at that time and till today claim that the right to forming a party or becoming member is available to all, but a disqualified person could not be head of a political party in view of Article 63A of the Constitution.
This is an undisputed position that Parliament cannot make any law that is against the fundamental rights guaranteed in the Constitution and if it does so the High Courts or Supreme Court can strike down the same under the power given by the Constitution. The Parliament can amend Constitution by two third majority and even nullify any judgement of Supreme Court by removing the causes underlying the same—Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. The Constitution of Pakistan envisages trichotomy of powers between the executive, legislative and judicial organs of the State—these cannot intrude into each others’ territory. This principle with all its import and scope is discussed in great detail in Mustafa Impex, Karachi and others v. The Government of Pakistan [(2016) 114 TAX 241 (S.C.Pak.)].
It is an established principle that the conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution.
The Supreme Court in its short order in 2018, barring Nawaz Sharif to even hold party office, held: “Sections 203 and 232 of the Elections Acts, 2017 are liable to be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution”. Nawaz Sharif was disqualified under Article 62(1)(f) of the Constitution by order of Supreme Court passed on July 28, 2017. The Court later held: “….he is debarred from holding the position of ‘Party Head’, by whatever name called, and prohibited from exercising any of the powers provided in Article 63A of the Constitution, as ‘Party Head’ or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party”.
The main reasoning of the order of the Supreme Court was: “Under Article 63-A of the Constitution, the position of a Party Head of a political party that has representation in, inter alia, the Parliament has a central role in the performance of duties by the Members of the Parliament. For rendering such a role, a Party Head must necessarily possess the qualifications and be free of the disqualifications contemplated in Articles 62 & 63 of the Constitution”.
The main problem, besides law, is lack of democratic values within our political parties. Individuals, especially with money power, dominate parties. In all established democracies, political parties in power or opposition protect the rights of common people. Our legislators help tax evaders and the corrupt to avoid proper scrutiny. In the repealed election laws, there were many mandatory provisions for financial declarations on oath for a candidate but these have been deleted in the Elections Act 2017.
In the name of electoral reforms, all the parties collusively and cleverly ensured non-disclosure of essential details in the nomination forms to be used in the 2018 elections onwards. They failed to realise that this was a requirement of the supreme law of the land (fundamental right of the voters to judge their representative on the touchstone of Articles 62 and 63).
It is worth mentioning that parliament since 2008 after revival of democracy never bothered to undo so-called Islamic provisions inserted in Article 62/63 by General Zia-ul-Haq. However, in 2017 it preferred to amend the elections laws facilitating non-declaration of vital information relating to payment of taxes and loan write-offs etc. The amendment was/is in conflict with the Articles 62 and 63 of the Constitution, but until today neither any writ has been filed nor has the Supreme Court taken any suo muto action. The same is true for subsection (2) of section 232 of the Elections Act, 2017 inserted vide Elections (Amendment) Act, 2023 became effective on June 26, 2023 after receiving the assent of President.
When the Elections Act, 2017 was passed, serious concerns were expressed by Tariq Malik, ex-Chairman of National Database & Registration Authority [NADRA] in an op-ed as under:
“Sadly, the Elections Act of 2017 has clipped the powers of the Election Commission of Pakistan (ECP) to scrutinise candidates with regard to the declarations about their income, asset and loan status. Under the previous nomination forms all election candidates had to declare under oath that: “I hereby solemnly declare to the best of my knowledge and belief that (i) no loan for an amount of Rs2 million or more obtained from any bank, financial institution, cooperative society or corporate body in my own name or in the name of my spouse or any of my dependants or any business concern mainly owned by me or the aforesaid stands unpaid for more than one year from the due date or has been written off.” Similar declarations were required with regard to the payment of utility bills and any criminal offences. Considerable administrative input has already gone into efficiently compiling this information and strengthening the capacity of the ECP to scrutinise candidates in the light of these public disclosures”
“….at the altar of political expediency, the entire political elite has come together to remove these crucial declarations pertaining to loan defaults and tax status. Backtracking on the need for public disclosures on nomination forms, the Elections Act of 2017 can be described as a regressive piece of legislation, at least on this account. Importantly, the legislation does make it abundantly clear that electoral reform requires more active debate and discussion from civil society and cannot be left to the political class alone. Without sufficient pressure from civil society, electoral reform is, at best, a deal among the elites. And the one point where parliamentary members are united is resistance to any attempts at public disclosure of their income and assets”.
“The revised format for nomination papers would no longer allow ordinary citizens to access information on loan defaults and taxes paid by candidates. With regard to the former, there is a clear attempt by our political class to shelve the issue as a closed and shut case. A legacy of the 1990s era, loan defaults were, in their essence, a political issue. Respective governments in this period used state-owned banks to grant loans to politicians masquerading as businessmen. In many cases, political clout was used to write off the loans of connected borrowers. In their seminal and landmark research on the subject, Asim Khwaja and Atif Mian, two social scientists, have already shown that politically connected firms during the 1990s and early 2000s were 45 per cent more likely to obtain a loan from government-owned banks and were 50 per cent more likely to default on these loans. Many of these beneficiaries should be clearly ineligible for public representation”.
Many beneficiaries of loan write-offs remained part of parliaments though Supreme Court asked the government to punish them and their accomplices. Supreme Court in Suo Moto Case No. 26 of 2007 and Human Rights Case Nos. 2698/06, 133, 778-P, 13933 and 14072-P of 2009, while questioning the authority and jurisdiction of State Bank of Pakistan (SBP) to waive off loans, constituted on June 3, 2011, a three member Commission, headed by Justice Syed Jamshed Ali (late), former judge of apex court, to prepare a report in respect of recovery of written off loans from 1971 onwards. The Commission submitted its report in Supreme Court and a hearing was conducted on February 20, 2013. The Court in its order of the same date ordered: “the report of the Commission to be made public, which is available for inspection according to the Rules to all and sundry. However, the procedure for allowing inspection of the report shall be regularized by the office. The locked iron boxes are ordered to be kept in safe custody along with their keys.” Notice was also issued to all the learned counsel appearing in the case and all concerned for March 15, 2013.
The Commission revealed that loans worth Rs. 2.38 billon were waived off between 1971 and 1991 whereas loans worth Rs. 84.62 billion were waived off between 1992 and 2009. The Commission, while holding bankers responsible for extending short-term or long-term loan facility to borrowers on inadequate securities, had recommended action against willful defaulters who took benefit of SBP’s Circular BPD No. 29, which expired on April 14, 2003 although the banks continued writing off loans till 2011.
The Commission also gave the names of companies and directors who were beneficiaries of loan waivers but no action has been taken till today. The Commission could only probe 740 cases and proposed that 222 more cases should also be probed as Rs. 35 billion were waived off in those cases. The report found serious irregularities in loans given to politicians, civil and military bureaucracy, but could not get proofs about waiver on political basis, as bank officials allegedly “concealed the facts because they were afraid of the influential persons.” The bankers, the report says, “have given only business reasons for writing off the loans.” The report consisting of three volumes – Volume I (Report of the Commission), Volume-II (Parts I to VII, synopsis of individual cases), Volume-III (Annexure of Volume I) – and the supplementary paper book (containing different correspondence).
The Commission suggested four steps: (i) principal amount should be recovered less payment already made, if any (ii) tribunals comprising the on duty or retired judges of High Courts should be set up for the recovery of amounts (iii) legislation for the recovery of written off loans should be made and (iv) action should also be taken against the credit committees. As expected, the powerful vested interests resisted all the steps proposed by the Commission. Till today, not a single rupee stands recovered from any big fish. Now they want to conceal these facts from voters as well in the nomination papers!
The inquiry into loans write offs by the Commission revealed the modus operandi used for looting public money by the powerful segments of society. It is time that the plunderers of public funds are punished and money squandered by them is recovered as suggested by the Commission without any further delay—it is essential for establishing true democratic polity and bringing about transparency in both the public and private institutions. Unfortunately, 2018 elections were held without such scrutiny and proved to be nothing but another farce for the people of Pakistan. Now, the same fate is going to be of 2024 election—now less than one month away now.
It is constitutional command that honest and truthful declaration of all facts, assets and liabilities by a contesting or returned candidate in his/her nomination papers, constitutes a benchmark for reviewing his/her integrity and probity in the discharge of his/her duties and functions as an aspiring or elected legislator. Statement of assets and liabilities along with other financial disclosures is a constitutional requirement and cannot be waived or relaxed under the Elections Act, 2017—a subordinate legislation. These disclosures are not only essential but represent fundamental right of voters for determining the suitability of any candidate. None in Pakistan has challenged till this day the unconstitutional provisions of Elections Act, 2017, as pointed out above and many other articles on the touchstone of Articles 19A, 62 and 63 of the Constitution as well recent substitution of section 232. It shows the apathy of civil society as a whole. The entire political elite is united to defend such unconstitutional laws/amendments as these suit them, but it is lamentable that defenders of fundamental rights, the courts, media, social activists and organisations like Human Rights Commission of Pakistan (HRCP) are also silent, rather approving such actions.
The Indian Supreme Court in a landmark judgement of February 16, 2018 in Lok Prahari v Union of India barred any convicted person to vote or participate in polls or even continue in office either as a legislator or as parliamentarian. It also ordered necessary amendments in Form 26 of Rule 4A of the Conduct of Elections Rules of 1961 requiring candidates to declare on affidavit theirs’ as well as their associates’ sources of income. Our lawmakers, judges of Supreme Court and lawyers who appeared in the recent case must read the judgement of Indian Supreme Court. It particularly says:
“This Court in Union of India v. Association for Democratic Reforms & Another, (2002) 5 SCC 294, opined that ‘voter speaks out or expresses by casting vote’ and such a speech is part of the fundamental right under Article 19(1)(a)… Subsequent to the said judgment, Parliament chose to amend the Representation of People’s Act of 1951 by introducing Section 33A. Parliament provided for the disclosure of certain limited information regarding criminal antecedents of the candidate… at an election, but not of all the information as directed by this Court of the abovementioned judgment (regarding educational qualifications, liabilities towards any public financial institutions and assets of the candidates and their dependents)…This Court [in PUCL v. UOI, (2003) 4 SCC 399] held Section 33B (of the Act of 1951) to be beyond the legislative competence of the Parliament. This Court recorded that Section 33A fails to ensure complete compliance with the directions issued by this Court in ADR case”.
Parliament has every right to enact laws but not by violating or offending, the fundamental rights of the citizens. It has been done in many provisions of the Elections Act 2017. Way back in 1992, the Parliament passed Protection of Economic Reforms Act, 1992 that gave a free hand to tax cheats and money launderers to get billions whitened. The Parliamentarians instead of protecting the country from tax evaders and corrupt persons have been protecting them and their assets, held in the names of their dependants or benami [name-lenders] by issuing assets whitening and tax amnesties schemes.
Our legislators have never shown interest to enact pro-people laws such as pensions for all citizens and income support to millions living below the poverty line. There was, or still is, any will on the part of Parliament to enact laws for confiscating illegal assets stashed at home and abroad. In these circumstances, is Parliament justified in demanding respect from the masses? Are parties ethically justified to seek support and votes from the people? The sloganeering of ‘sanctity of vote’ does not suit to all those who have been availing tax amnesties as offenders of tax laws, looters and plunderers of national wealth.
