- CJP recalls ‘successive encroachment’ made into Constitution throughout history
- Stresses constitution is for people of Pakistan and don’t make it difficult
ISLAMABAD: The seven-member larger bench of the Supreme Court (SC) on Friday reserved its verdict on a set of petitions seeking to determine period for disqualification of a lawmaker with Chief Justice of Pakistan (CJP) Qazi Faez Isa said to issue a “shorter order as soon as possible.”
“Probably not today but God willing, we will as soon as possible come up with a shorter order” CJP Qazi Faez Isa said in the concluding remarks of the hearing.
Headed by CJP Qazi Faiz Isa, the seven-member larger bench, comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, held marathon hearing in the case, while was broadcast live on the apex court’s website.
The SC bench is hearing a set of 15 petitions to determine the period of disqualification under Article 62(1)(f), especially in light of the inconsistencies found between two constitutional provisions — one prescribing a lifetime ban while the other proposing a five-year disqualification period. The court will decide whether the 2018 Samiullah Baloch case, or the 2023 amendments to the Elections Act 2017 that reduced the ineligibility period to five years, will prevail.
The law is the same provision under which former prime minister Nawaz Sharif and Istehkam-i-Pakistan Party Chairman Jahangir Tareen were disqualified.
The legal conundrum arose in view of a 2018 SC judgment in the Samiullah Baloch case, when the apex court ruled that disqualification handed down under Article 62(1)(f) was supposed to be “permanent”. The verdict was issued by former chief justice Mian Saqib Nisar, Justice Sheikh Azmat Saeed, ex-CJP Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah.
However, in June 2023, an amendment was made to the Elections Act 2017, specifying that the period of the electoral disqualification will be for five years, not for life.
The dilemma cropped up in the top court last month during an electoral disqualification dispute moved by Sardar Mir Badshah Khan Qaisarani, who was disqualified for producing a fake degree. His appeal is still pending before the Lahore High Court.
At the previous hearing, Justice Isa had regretted that constitutional amendments dealing with the disqualification of lawmakers under Article 62(1)(f) were thrust upon parliament under peculiar circumstances, without any debate.
“I have repeatedly emphasised that there is a need to understand the broader picture and the way such amendments in the Constitution were brought in,” the CJP had observed, adding these things were introduced during the martial law by dictators, when the will of one individual prevailed, merely because of the fear that otherwise the individual may perpetuate his rule for another 25 years. “Thus, these provisions were made fait accompli,” he had said.
The hearing
As the proceedings commenced today, the bench summoned Advocate Makhdoom Ali Khan, the lawyer of Jahangir Khan Tareen, to come to the rostrum.
The lawyer stated that the Samiullah Baloch case made a “complete disconnect” between Article 62 and Article 63 of the Constitution, which talk about the disqualification of lawmakers.
“It observes that these are two different sets and two different considerations prevail, therefore the language of Article 63 would not be allowed to inform the language of Article 62 of the Constitution,” he contended.
Makhdoom maintained that the SC, in the said case, was not talking about a declaration made under the penal laws of the country.
At one point, Justice Shah pointed out a benefit that could be drawn from the Samiullah case judgment was that the nature of the declaration was obvious while the duration of the disqualification remains unclear.
For his part, Makhdoom said: “[…] I could not find a case for any common law jurisdiction where as a result of civil liability and a decree of a civil court, a citizen is denied the right to exercise, or the protection of a fundamental right guaranteed by the Constitution for the rest of his life.”
He further put forward questions regarding which court was capable of granting a declaration under the civil laws of the country that a person is honest and truthful. “There is no civil court in this country which can grant that,” he contended, adding that judges usually grant declarations on a legal title or legal character.
Here, Justice Mandokhail asked if a civil court could issue a declaration of disqualification. The lawyer replied in the negative.
Meanwhile, Justice Shah asked: “Can legislation put a timeframe on this declaration? Could that be possible? Could legislation say that this declaration will continue forever, but for the purposes of elections will have a timeframe?”
In his response, Makhdoom said Article 62(1)(f) does not say that this is a declaration of the civil court. He added that the Constitution keeps qualification and disqualification separate.
“Article 62 applies pre-election, post-election or any time?” Justice Mazhar inquired, to which the lawyer replied Article 63 applied at any time while Article 62 applied only at the time of elections.
Here, the CJP interjected that the court had “bummed down in restricting ourselves to reading just a particular provision of the Constitution and we seem to have forgotten the Constitution as a whole”.
“What is the Constitution all about? What does it do? What are the fundamental rights?” the top judge asked, lamenting that the constitutional history of Pakistan was being disregarded.
“We are disregarding the fact why these amendments were brought into the Constitution, we are disregarding the fact that original Constitution has a greater sanctity than amendments brought unless there are such amendments which enable to serve the people better,” Justice Isa remarked.
He recalled that there was “successive encroachment” made into the Constitution throughout history. “Disregard how it came into the Constitution, now you are stuck with the language of the Constitution,” the apex court judge said, stressing that he could not forget the history of Pakistan.
“We had given public notice in newspapers but not a single political party came before us that this is a good interpretation of the Constitution,” CJP Isa noted. He highlighted that there must be some logic and reasoning behind lifetime disqualification, saying that a person who “destroyed Pakistan” was allowed to contest elections but others were disqualified for life just for some errors in the nomination papers.
For his part, Makhdoom referred to a US SC judgment where it had rejected new qualifications for lawmakers sought by Congress. Coming to lifetime disqualification, he said: “The Parliament in the 18th Amendment did not mention that the declaration will remain forever.”
An election tribunal, the lawyer continued, had four declarations which included dismissing a petition and even declaring the election void as a whole. “For offences under the Elections Act, the session judge tries them,” he explained, adding that the Pakistan Penal Code also had a chapter on election offences and where punishments were prescribed.
“When your lordship looks at corrupt and illegal practices, the maximum punishment of illegal practices does not exceed two years. Only for the corrupt practice, the [punishment] can go beyond two years,” he explained, submitting that the “business of civil law declaration” had been introduced by the apex court which stripped the fundamental rights of an individual forever.
At one point during the hearing, the CJP reiterated that everything should be logical. “We are not philosophers. This document is not for lawyers, it is for the people of Pakistan. Please explain to the people of Pakistan why a National Accountability Bureau convict will get a 10-year disqualification.”
“The Constitution is for the people of Pakistan. Don’t make it difficult,” the top judge stressed.
For his part, Makhdoom said the current situation was more a “product of legal imagination than legal reality”, suggesting that the bench should neither strike down nor uphold the Samiullah case judgment and “leave it for another day”.
“Wait for the issue to mature,” he added, adding that the life-long ban was brought by the court. The lawyer further stated that the Samiullah case judgment talked about the doctrine of repentance but didn’t deal with it. “A declaration which is the result of a final determination will remain in the field till such time that it is undone by the court.”
In the context of elections, Makhdoom continued, no court had the power to do that, not an ordinary civil court nor the election tribunal.
“You want us to hold that we overrule Samiullah Baloch and stop, nothing more?” the CJP asked, to which the lawyer replied in the affirmative.
“But all of Pakistan is happy with the law because no one has come forward [to challenge it],” the top judge remarked, referring to the provision of five-year disqualification.
Here, Makhdoom reiterated that the Samiullah case should be overruled because it reads into Article 62(1)(f), “declaration of a civil nature, which for the life of the declaration, disqualifies a person and strips him of his fundamental rights under Article 17 of the Constitution”.
The court, he continued, talked about the doctrine of tauba (repentance) but said the declaration would remain in the field until removed. However, it did not identify a forum or law under which the declaration could ever be undone. “My respectful submission is that neither such a law nor doctrine exists,” he added.
Justice Aminuddin also inquired if the matter had gone to the Federal Shariat Court, to which Awan replied in the negative.
At one point, Justice Hilali asked what offences came under moral turpitude. In his response, the AGP said the Samiullah case provided the definitions of moral turpitude but said whatever the judgment had come up with was not correct.
On the question of the interface between Articles 62 and 63, Awan said the SC had said in a previous case that Article 62 applies at the pre-election stage while Article 63 applies at both pre and post-election stage.
Here, Justice Isa said he did not disagree with Justice Khosa’s note.
Meanwhile, AGP Awan said the SC had to first determine what courts should it be, civil or criminal, that would give the declaration for the purpose of Article 62(1)(f), the procedure adopted for the declaration, the standard of proof required and the locus standi (the right or capacity to bring an action or to appear in a court).
However, the CJP said that in the light of Justice Khosa’s note, “maybe these are just rhetorical questions”. “Nonetheless, Parliament has understood Article 62(1)(f) better than us and has formulated something. Good for you Parliament, they represent the people of Pakistan,” he remarked.
The CJP also observed that Parliament had limited the time period of disqualification to five years. “We can’t tell Parliament to craft a law this way [..] This is their job, our job is another job. Is it unconstitutional?”
He said that “someone has applied their minds and made a law” which specifically mentioned all judgements of any court. “So that law has shown us respect” by limiting the time period, he said.
For his part, AGP Awan said 62(1)(f) had two components, one of which was the cause for disqualification which was declaration by a court of law. He said this resulted in a constitutional consequence, which was disqualification.
“Now what Parliament has done, it has placed a limitation on the cause, the declaration. The consequence stays where it is,” he argued, saying in this case it was five years.
He further said that without the amendments to the Elections Act and if the Samiullah Baloch decision was overturned, the “consequence” would only be for that particular election.
He said that the amendments to the Election Act only provided the duration for disqualification, and left the procedure and manner open. He asserted that the Samiullah Baloch verdict had to be overturned.
“It fails to answer the questions raised by Ishaq Khakwani [case] it does not even discuss them. Samiullah [case] amounts to reading something into the Constitution which it did not contemplate […] Parliament has not tinkered with the consequence at all. It has only provided a duration for that declaration,” he said as he concluded his arguments.
After hearing all the arguments, the court reserved its verdict in the case. “We will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon God willing.”
