Supreme Court reserves verdict in lifetime disqualification case
Pakistan
A seven-member bench heard the case
ISLAMABAD (Dunya News) - The Supreme Court of Pakistan on Friday reserved the verdict in the all-important case pertaining to lifetime disqualification of politicians under Article 62(1)(f).
A seven-member SC larger bench, headed by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, heard the case.
"The clauses pertaining to disqualification were added by amendments during martial law. It remained unchanged as no changes were made in the article during democratic rule," Chief Justice Isa remarked.
During the course of hearing, the CJP remarked that “the Constitution doesn’t allow lifetime disqualification. It’s just a self-created theory.”
He added that “mistakes on nomination papers can’t make a candidate ineligible for lifetime.”
Justice Isa said parliament should not make such legislation that is baffling for a common man. Unfortunately, he said, there was no regard for people.
He said the hearing of the case was not for political and individual matters but it's about national issues.
"The individual matters will be heard by another bench next week," he said.
During the course of proceedings on Thursday, the chief justice observed that whether the wisdom of five people could abolish the legislation of 326 parliamentarians. He remarked that the lifetime disqualification was also against Islam.
He said the legislation introduced by the elected members of parliament could not be seen with hate. He noted that the Article 62(1)(f) did not mention the period of disqualification.
The CJP said the court wanted to conclude the case early in view of the general elections, and also wanted to end the confusion of returning officers with regard to the Election Act.
Supreme Court Bar Association’s lawyer Ali Imran said they were withdrawing their case. “The SCBA supports the Election Act and five-year disqualification,” he added.
The hearing has been stopped for Friday prayers.
Thursday's proceedings
Chief Justice of Pakistan (CJP) Qazi Faez Isa made significant remarks on Thursday during a Supreme Court hearing regarding the lifetime disqualification of lawmakers under Article 62(1)(F) of the Constitution. He highlighted that banning anyone for life from parliament goes against the principles of Islam.
As the hearing started, Advocate Khurram Raza, favouring lifetime disqualification, came to the rostrum and raised questions about maintainability of the proceedings.
He asked under which provisions of law the proceedings were being conducted. However, the bench asked Raza to stick to his petition.
Resuming his arguments, the counsel said it was only the election tribunal's prerogative to grant a declaration and the right could not be exercised by the high court or apex court directly. However, he maintained, cases against orders passed by the tribunal could be heard by the apex court under the scope of appeal.
The CJP said this debate won’t resolve the problem before the court. Justice Isa remarked the court would not discuss the powers of the election tribunal as it was not the question of an election tribunal or election commission exercising a power but it was about the power exercised by a constitutional court.
Raza said any declaration in the election tribunal or by the SC in the appellate jurisdiction was covered under Article 62(1)(f).
Justice Isa remarked that election tribunal would exercise powers only under the law. Therefore when the SC would exercise such powers it could not have more powers than the election tribunal or the Election Commission of Pakistan.
He then added, “Unless you can show that the ECP and the election tribunal can also disqualify for life, then that power will also be with the SC, otherwise it will be an additional power given to the Supreme Court under Article 62(1)(f).”
Raza said the SC could give a declaration, pertaining to lifetime disqualification, only if it had arisen out of the tribunal and not on its own.
The CJP said Article 68 of the Constitution talked about disqualification and this was for five years. He then questioned about the provision under which one could be disqualified for life? "Has the court power to do this? That is an important question,” he said.
Justice Shah asked was it not strange that for other crimes like treason, murder, rape and kidnapping one could always come back and contest elections but for a civil wrong the punishment was for life.
Raza replied that these arguments were present in Islamic principles. However, the CJP took exception to the contention. Justice Isa observed there was a principle of repentance and returning to the right path.
At one point, Justice Isa referred to two rulings issued by former CJP Bandial which were contradictory to each other. CJP Isa observed there was no provision of lifetime disqualification under the Constitution and it was determined according to one's own perception.
The CJP also inquired if the provisions of disqualification were amended in the Constitution by a dictator, saying that a “hypocrite was worse than a non-believer”.
The CJP lamented that amendments were made on 'gunpoint' and asked how the wisdom of five judges sitting in a court could be more than the people sitting in parliament.
Justice Isa remarked that no matter how much people despised the members of the assembly, they were their representatives. Wisdom of the dictators could not be given precedence over the wisdom of assembly members.
Further, the CJP said the court wanted “clarity” in the run-up to elections and to prevent confusion for returning officers regarding the law they needed to follow.
Subsequently, Advocate Usman Karim came to the rostrum. He highlighted that the preconditions of Saadiq and Ameen were also applied to non-Muslims. He argued that these conditions were not in reference to Islam.
The CJP inquired if non-Muslims could be Saadiq and Ameen. He then asked if these things were inserted for confusion or some other purpose.
Justice Mandokhail also inquired who was responsible for determining if the character of a person was good or bad, to which the lawyer said it was only God's prerogative.
The Supreme Court had disqualified PML-N leader Nawaz Sharif for lifetime over corruption allegations.
A five-member bench of the country’s apex court had unanimously ruled that anyone disqualified under the constitutional clause requiring legislators to be “honest and trustworthy” would be considered banned for life.
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.
The 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.
PREVIOUS HEARING
Attorney General Mansoor Usman Awan had 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.
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 Jan 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 a 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.
