Lifetime ban: SC questions unelected persons, dictators indulging in legislation
Pakistan
Attorney general says blanket sanction not admissible after the amendment to Election Act
ISLAMABAD (Dunya News/Web Desk) – As a seven-member Supreme Court bench started hearing the lifetime disqualification case on Tuesday, Attorney General Mansoor Usman Awan argued that he won’t advocate the extreme prohibition – an important stance given that the country is heading towards the much-awaited general elections on Feb 8, with three-time prime minister Nawaz Sharif in the race for a record fourth term.
Awan, therefore, requested the court to review the lifetime ban verdict passed by the apex court under Article 62 (1) f of the Constitution.
The attorney general representing the Federation wasn’t alone in his stance as the four provincial advocate generals too endorsed the opinion, which is a result of the changes made in Section 232 of the Election Act 2017 by parliament during the Shehbaz Sharif-led coalition government, fixing the disqualification period at five years.
Awan also remarked that a person could return to contest election after serving a two-year jail term, but another individual would be barred for the same for entire life merely because of a [court] declaration – a practice of which Nawaz – a three-time prime minister – is a victim.
UNELECTED INDIVIDUALS ARE THE PROBLEM
In his remarks, Justice Jamal Khan Mandokhail observed that the current confusion was a product of unelected people indulging in the law-making exercise – an obvious reference to military dictator Ziaul Haq who introduced the concept of Sadiq and Ameen in the Constitution to target the political rivals and stop them from reaching parliament.
On this subject, Chief Justice Faez Isa was even more expressive, as he made it clear that he would rely on the legislation introduced by elected representatives, not dictators.
Meanwhile, the court order issued after Tuesday’s hearing mentioned that the apex court would decide the matter by January 11 – a date that falls before the Election Commission of Pakistan (ECP) is scheduled to announce the final list of candidates and allot party symbols. The case will again be heard later in week on Thursday [January 4].
IT’S NOT APPLICABLE, IT CAN’T BE INDEFINITE
On the other hand, the chief justice wondered how anyone could determine the character of other based upon the criteria set in said article of the Constitution, as he raised questions about the terms “Sadiq” [truthful] and “Ameen” [honest].
No one other than Prophet Muhammad (Peace be upon him) could use the title of Sadiq and Ameen, he said and remarked that even Quaid-e-Azam would have been disqualified if the standards were applied to him.
In similar remarks, Justice Mansoor Ali Shah questioned how a court could give a declaration about character of an individual.
According to Chief Justice Isa, the two terms are creating confusion because of their ambiguous nature and the inability at practical level to implement the same, while no one can attain the highest level of character as per the standards set by Islamic principles. Moreover, the same ideals aren’t applied to people other than the parliamentarians.
He also observed that they could accept the amendment to Election Act because no one had challenged the same – an argument not seconded by the attorney general who was of the opinion that it might create an impression of overwriting the Supreme Court verdict through legislation.
This argument meant the attorney general wanted to address all possible loopholes and criticism in future by getting a clear judgement on the issue.
THERE IS NOTHING CALLED JUDICIAL SUPREMACY
Sanaullah Baloch – a well-known nationalist leader associated with BNP-Mengal – during the hearing argued in favour of the Supreme Court’s lifetime ban and introduced a unique concept of judicial supremacy.
However, the chief justice wasn’t impressed and immediately intervened to remind him that they had only heard about supremacy of parliament, asking him to stop projecting such absurd concepts.
BACKGROUND
The hearing pertains to a case concerning the lifetime disqualification of Sardar Meer Badshah Qaisrani – a former member of Punjab Assembly – before the 2018 elections. And interestingly, even Saqib Jilani, the counsel leading the original plea against Qaisrani, told the court that he was against the original Supreme Court verdict.
Chief Justice Faez Isa is heading the bench which also comprises Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali.
Although the nomination papers of Nawaz from both constituencies NA-15 and NA-130 were accepted by the respective returning officers, an election tribunal has been moved against him in Lahore.
The objections were raised on Monday in the case of NA-130 in Lahore on the grounds of his lifetime disqualification under Article 62 (1) f of the Constitution in July 2017, which ended his third five-year term to yet another premature end. Previously, he had fallen a prey to the “Kakar formula” in 1993 and later a Pervez Musharraf-led coup in 1999.
Interestingly, similar objections were raised by the rival PTI lawyers in Mansehra in the case of NA-15 at the initial stage of filing of nomination papers. But the returning officer rejected these on the basis of the changes introduced in the Election Act 2017.
Earlier, Chief Justice Isa, who was leading a three-member bench, had wondered last month how a person could still remain disqualified for life after completing the sentence and added that the Supreme Court had two different opinions on lifetime disqualification.
During the hearing, the chief justice took notice of the contradiction between the Supreme Court’s judgement on lifetime disqualification and the amendment made in the Election Act.
As a result, the court ordered to place the matter before the committee which also includes two senior most judges – Justice Sardar Tariq Masood and Justice Ijazul Ahsan – to constitute a larger bench and fix the hearing after the winter vacation.
