- Is the disqualification for life?
As a student of politics, I am watching developments on two politically significant court cases. One against the former president of Brazil, Luiz Inacio Lula da Silva, and the other against the former prime minister of Pakistan, Nawaz Sharif. There are similarities and differences in both cases. One of the similarities is that the charges appear questionable and politically motivated to many people. Another similarity is that both are popular politicians and their parties were expected to gain majority mandate from people in upcoming elections. The difference is that Lula da Silva rose from humble beginnings as a labour union leader and is ousted by the oligarch of Brazil. Nawaz Sharif, on the other hand, is a member of oligarchy and ousted by the middle class. Lula is barred from contesting as president that he was expected to win and thrown into jail to serve a 12 years term. Nawaz Sharif is barred perpetually to participate in politics. It is this latest verdict of the Supreme Court that I wanted to discuss and share my observations about.
The most common interpretation of the Supreme Court verdict is that disqualification of Nawaz Sharif and many others under article 62(I)(f) is for life. After reading the Supreme Court Order it is clear to me that it is a misrepresentation of the verdict and disqualification is not for life. That is the point I want to explain below.
The most basic question that no Supreme Court lawyer tackled and about which both Justice Umar Bandial and Justice Azmat Saeed complained was the failure of them to address the question whether moral qualities or failings are permanent or transitional in nature. Can we say with surety that a person has a permanent condition of being truthful or a liar? No lawyer addressed that question and remained focused on interpreting the wordings of the constitution, demanded constitution considered as a whole; and debated rights of various constitutional institutions to deal with the question of tenure of disqualification.
The basic principle of justice is gradually increasing severe punishment for repeated offenses except in the case of pre-meditated murder. First-time offenders are dealt with mildly while repeated violations result in more severe punishments. This principle is also discussed in dealing with the term of disqualification under article 62 (1) f. The judges felt that none of the lawyers used appropriate arguments to justify that disqualification should not be perpetual. Here the important term is perpetual rather than a lifetime.
Judges also understood that defining the term of disqualification that is not specifically mentioned in the article could be encroaching on the right of the legislative branch
Let’s consider example about punishment for murder. The argument for capital punishment is that injustice done to the person being murdered is permanent and cannot be reversed so the punishment should also be of the same nature. But for other crimes, capital punishment is not awarded because the possibility of compensating the injured person is available. This means that a person who committed a lie has to be punished if it caused tangible injury to someone. If the injury has not occurred then he can’t be punished but since it is proven that the person has lied so he has to be barred from holding public office until he proves that he will not lie again.
Judges took the view that the fundamental right to political association and action is not absolute and restrictions can be imposed in certain conditions. They understood that when a right is not absolute then the punishment to withhold that right has to be similar in its extent.
Judges also understood that defining the term of disqualification that is not specifically mentioned in the article could be encroaching on the right of the legislative branch. So, they limited themselves to imposing perpetual disqualification until the cause that effect it remains enforced. This is a critical point to keep in mind. If judges had provided a fixed term for disqualification even if it was a lifetime ban then it would have created a serious conflict between constitutional institutions.
Based on the above findings I interpret the verdict in a different manner than most lawyers, commentators, and politicians. Judges have accepted that moral qualities or failings are transitional in nature rather than being permanent. They believe good moral character is important for a politician and they should be disqualified from holding public office as long as a declaratory verdict remains in effect that the person is dishonest. Judges also suggested that when a crime is committed the person is punished after which he is barred from holding public office for five years. But in case of moral failings, there is no punishment which means the principle of five years bar does not apply. Rather the person has to demonstrate that his moral failing has been fixed after which the declaratory judgment can be removed. Justice Umar Bandial in para 37 even advised all those affected by the verdict to approach appropriate benches to get the declaratory judgment being reconsidered.
This means they have kept a window open for all those affected by the verdict. Those disqualified have to demonstrate to the bench where they file a petition that their past moral failings have been cured and they will remain Sadiq and Ameen in the future. I am confident my interpretation is correct because I did not find anywhere term lifetime ban in the verdict rather term perpetual has been used. If I have interpreted the verdict correctly then it is in line with Islamic political thought which suggests that principle of justice is to provide an opportunity for recompense rather than to be severe and close all doors for repentance. I agree with this verdict of the Supreme Court and it will further the cause of transforming our society.
