LAHORE:
A writ petition challenging section 232(2) of the Elections Act 2017 was filed in the Lahore High Court on Thursday, asserting that the prescribed five-year disqualification period is in violation of Article 62(1)(f) of the Constitution, and contrary to established principles from landmark judgments.
The petitioner, Mian Shabir Asmail, represented by senior advocate Azhar Siddique, urged the court to declare the provision illegal, unlawful, and ultra vires to the Constitution. Additionally, the petitioner sought a suspension of any benefits related to section 232(2) until the final resolution of the petition.
In the petition, it was highlighted that a recent Supreme Court judgment on January 8, 2024, nullified the concept of lifelong disqualification under Article 62(1)(f), with a majority ratio of 6 to 1, abolishing the notion of permanent disqualification. The petitioner argued that despite these developments, Section 232(2) of the Elections Act 2017 remained unaltered, and recent dissension from Justice Yahya Afridi indicated a difference of opinion within the bench on the issue.
The legal complication emerged after amendments to the Elections Act 2017 by the parliament, limiting the disqualification period for politicians to five years, contrary to the Supreme Court’s characterisation of disqualification under Article 62(1)(f) as “permanent.” The latest judgment permitted figures like Nawaz Sharif and Jahangir Tareen, previously disqualified for life, to run for office.
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The petitioner emphasised that Article 62(1)(f) could not be overshadowed by the outcome of a criminal proceeding, as it outlined qualifications necessary for election candidates, while Article 63(1) detailed disqualifications for membership in parliament and provincial assemblies.
Further arguments underscored the distinction between qualifications and disqualifications, emphasising that the consequences of both under Article 62(1) and Article 63(1) were distinct, and any interchangeable view was flawed. The petitioner contended that the permanence of disqualification under Article 62(1)(f) should prevail over Section 232(2) of the Elections Act 2017, as the supremacy of the Constitution must be upheld.
The petitioner also asserted that Section 232(2) of the Act was ultra vires Article 17 of the Constitution, as it contradicted the permanent disqualification of a candidate declared “dishonest” by a competent court. Allegations of malafide intention were raised, suggesting the amendment aimed to provide relief to Nawaz Sharif.
The petitioner urged the court to exercise its powers under Article 199 of the Constitution to strike down Section 232(2) of the Act as unlawful, illegal, irrational, discriminatory, and coram non-judice. Additionally, it was argued that the impugned order was contrary to Articles 4, 10-A, 14, 25, and 62(1)(f) of the Constitution, as the Election Commission of Pakistan (ECP) lacked the authority to decide qualification and disqualification issues under the Act. Hence, the petitioner sought the setting aside of the impugned section by the court.
