Chief Justice of Pakistan (CJP) Qaiz Faez Isa on Thursday said the Supreme Court was seeking “clarity” in the run-up to the February 8 general elections as it resumed hearing a set of petitions to determine whether the disqualification period for a lawmaker was five years or a lifetime ban.
A seven-member larger bench, headed by the CJP and comprising Justice Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, conducted the proceedings that were broadcast live.
The hearing was adjourned for tomorrow for 9am.
As the February 8 general elections approach, the apex court seeks to determine once and for all the raging debate on whether aspirants disqualified under Article 62(1)(f) of the Constitution could contest polls in light of the amendments in the Elections Act 2017.
The law, which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous), is the same provision under which former prime ministers Nawaz Sharif and Imran Khan were disqualified.
The legal impasse 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 Ahsan and Justice Sajjad Ali Shah.
However, in June 2023, an amendment was brought in 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 had filed nomination papers to contest the 2008 and 2018 elections but was disqualification for producing a fake graduation degree. His appeal is still pending before the Lahore High Court.
Delving deep into the matter of disqualification at the previous hearing, the CJP had questioned why two similarly worded provisions of the Constitution provided different punishments to parliamentarians for the same offence.
He had compared Article 62(1)(f) and Article 63(1)(g) and said the former entrailed a lifetime ban whereas the latter prescribed a five-year ban from parliament.
The court had also appointed senior counsel Faisal Siddiqui, Uzair Karamat Bhandari, and legal adviser Reema Omar as amici to assist the court, expressing its intention to wrap up the case proceedings by Jan 11 as it may create “confusion” for returning officers.
The hearing
At the outset of the hearing today, Advocate Khurram Raza, who is in favour of lifetime disqualification, came to the rostrum. The lawyer raised questions about the maintainability of the proceedings.
“Under what provision of law are these proceedings being conducted?” he asked. However, the bench directed Raza to stick to his petition.
Resuming his arguments, the counsel said that the election tribunal could only grant a declaration and that the right could not be exercised by the high court or SC directly. However, he continued, cases against orders passed by the tribunal could be heard by the apex court under the scope of appeal.
Here, the CJP said this debate won’t resolve the problem before the court. “Let us not go into the powers of the election tribunal. This is not the question of the election tribunal or election commission exercising a power, it is about a power exercised by a constitutional court,” he highlighted.
For his part, Raza said any declaration in the election tribunal or by the SC in the appellate jurisdiction was covered in Article 62(1)(f).
“Let’s clarify, the election tribunal will exercise powers only under the law […] therefore when the SC is exercising such powers it cannot have more powers than the election tribunal or the Election Commission of Pakistan,” Justice Isa said.
“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),” he added.
For his part, Raza said the SC can give a declaration, pertaining to lifetime disqualification, only if “it had arisen out of the tribunal” but not on its own.
Meanwhile, the CJP said Article 68 of the Constitution talks about disqualification, but only for five years. “Where is that provision which says [a lawmaker] is disqualified for life? Where is the power in this court to do this? That is the essential question,” he stressed.
At one point, Justice Shah asked: “Does it not appear odd to you that for other crimes as big as treason, you could always come back and contest elections but for a civil wrong […] the punishment in a way is for life. But if I were to commit a murder, rape or kidnapping […] I could come back and contest elections.”
Raza replied that these arguments were present in Islamic principles. However, the CJP took exception to the contention.
“There were those who were violently opposed to Islam and then they became caliphs […] just don’t throw in Islam like that […] there is a principle of repentance and returning to the right path,” Justice Isa remarked.
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”. He lamented that amendments were made on “gun points” and asked how the wisdom of five judges sitting in a court could be more than the people sitting in the Parliament.
“No matter how much you despise the members of the assembly, they are our representatives,” the top judge remarked. “You cannot give precedence to the wisdom of dictators 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, arguing that hence these conditions were not in reference to Islam.
“Can non-Muslims not be saadiq and ameen?” Justice Isa asked. “Were these things inserted for confusion or what?”
Justice Mandokhail also inquired who was responsible for determining if the character of a person was good or not, to which the lawyer said only God could do it.
At one point, Karim said lifetime disqualification in the Samiullah Baloch case was a “judge-based law”. Meanwhile, Justice Shah wondered how could the lifetime disqualification still be applicable today when a law had been introduced and the disqualification period had been fixed at five years.
“Politicians are elected representatives of the people,” the CJP said, adding that dictators and politicians could not be judged together. “A dictator comes into government by breaking the constitution, not by being elected,” Justice Isa stated.
Subsequently, the court adjourned the proceedings for a break. When the hearing resumed, Bhandari, who was appointed amici to assist the SC in the case, was called to the rostrum.
Bhandari contended that the returning officers had two norms before them, the Elections Act amendment and the Sammiullah case judgment, and they had to enforce the higher of both norms.
“The way I see it, the starting point is the historical context for Article 62(1)(f),” he said, adding that the law entailed a lifetime disqualification, which was settled before the 18th Amendment. He highlighted that various provisions under Article 63 imposed a disqualification but did not lay down any time frame.
He said that in the 18th Amendment, the Parliament substituted Articles 62 and 63 in their entirety. “Secondly, Article 63(1)(g)(h)(i)(j) had time limits inserted in them and they ranged from two to five years. Probably that gradation is justified based on the severity of the wrong that they entail.
“The third thing that the Parliament did was that in Article 62(1)(f) they inserted these words ‘there being no declaration to the contrary by a court of law’. The fourth thing the Parliament did not do was insert a time limit in Article 62(1)(f),” Bhandari pointed out.
He also stated that as per his reading of the 2018 case judgment, he did not see it as laying down a permanent disqualification but it was an indefinite disqualification — which can come to an end. “The Samiullah case cannot be overruled but there are problems with it that can be fixed,” the lawyer added.
Bhandari further argued that the Parliament never even tried to change the language of Articles 62 and 63, at which the CJP said that the entire country was closed down once when the language of the oath was changed. “Maybe this is why they left it. The state must have thought who would deal with these people,” the top judge said.
For his part, Bhandari stated that the key to resolving the issue was in the Samiullah case judgment, which mentioned the concept of repentance. He highlighted that the returning officer could not issue the declaration of disqualification, while the election tribunal could do the same on the basis of established facts.
However, he continued, the SC 2018 judgment does not mention would can issue the declaration.
At that, CJP Isa remarked how a court could determine if someone was honest and truthful. “How can courts determine honesty, trustworthiness and non-wastefulness?” he asked, pointing out that the SC did everything in the lifetime disqualification case.
“Where is it written in the Constitution that the Supreme Court can give such a declaration?” Justice Shah further inquired.
“Let’s suppose a witness lies in a criminal or civil case, can he not be disqualified for this?” the CJP asked, while Justice Shah reiterated that the primary question was where the disqualification’s declaration would come from.
In his response, Bhandari said the SC or even a civil court could issue the declaration based on established facts. However, Justice Isa reiterated that the court wanted to bring clarity and make the life of ROs easy, not difficult.
Meanwhile, Justice Afridi asked Bhandari about his opinion on the need to have Article 62 in the presence of Article 63.
“They chose to do that because conceptually they relate to two different things; qualifications are positive attributes that some aspirants to the office must have. Disqualifications are attributed that he/she should not have […] if negative attributes are there it would take away the fitness or competence to hold the particular office,” Bhandari said.
The CJP asked if a person could approach a court after disqualification and say he had now repented. “So at the end of the day, you are saying it is all to do with our feelings. It is what we felt,” Justice Isa lamented.
“In my opinion, the most dangerous thing that leads you to destruction is when you give too much discretion to anyone, whether it is a judge or bureaucrats. When discretion is not structured, where there is no principle or guideline […] sorry to say, this does not make for sustainable law,” the top judge remarked.
Justice Isa also noted that people “who made Pakistan hostage” never repented. “All these things have come during the martial laws, but no one mentions this.”
In his defence, Bhandari said he criticised both military dictators and those who brought the 18th Amendment. However, the CJP intervened and said it was easy to criticise parliamentarians.
At one point, Justice Mandokhail asked if the apex court could declare any person saadiq and ameen in the Faisal Vawda case while Justice Hilal asked if there was a criterion that a judge needed to meet to declare someone honest and truthful.
In his arguments, lawyer Faisal Siddiqui — who was appointed the amicus curiae — focused on the issue of the time period of disqualification under Article 62(1)f.
In his primary submission to the bench, Siddiqui said the Samiullah Baloch decision must be “overruled” because “it poses numerous problems as far as constitutional interpretation is concerned.”
The chief justice subsequently questioned that if the Elections Act amendment overruled the Samiullah Baloch decision then what was the need for the court to do so. In response, Siddiqui said a statutory law could not overrule the constitutional interpretation of a judgement or a decision of the apex court explaining a provision of the Constitution.
Siddiqui further said that the Samiullah Baloch decision was also “very problematic in terms of democratic growth in the country”.
The lawyer argued that the use of the word “permanent” was what created issues in the Samiullah Baloch decision since it made the period of disqualification permanent.
He said that constitutional absences or silences were left because they concerned “touchy issues” so the legislature did not want to take a particular position at a certain time and wanted to leave the issue indeterminate since putting in a definitive answer would create a permanent character.
Siddiqui argued that when constitutional silences needed to be filled, they should always be done considering that the legislature has no intention and further, any judicial interpretation was being taken on an issue on which there was no definitive answer.
Here, CJP Isa interjected and asked why a third consideration should not be made that “when there is a constitutional absence, Constitution makers intentionally opened the field for legislation, not for constitutional interpretation which can be changed from time to time.”
Agreeing with the top judge and building on what he said, Siddiqui said: “That is why the constitutional implication which should be drawn from that absence should be such that it should be changeable in the future through statutory interpretation” or legislation.
He said another “obvious implication” of any absence was that any declaration by the court should apply to the next election.
The lawyer was subsequently questioned about how to clear an individual for the next general election who was already declared a “fraudster”. Here, the chief justice remarked that a solution to this conundrum was found in Islam.
“No person is per se bad, a person’s acts are bad,” the top judge remarked.
“If you debar someone for life, you condemn that person for life, there is nor redemption or forgiveness which Samiullah Baloch [decision] also touches upon but does not attend to it at all.”
The chief justice said forgiveness “comes from within” and therefore acts could be punished “for a particular period” but it did not mean a permanent condemnation.
“No person can be condemned. The door of mercy will remain open up there [in the heavens]” and if a person changed their ways then only their past actions should be condemned instead of their personal self, CJP Isa said.
He said the Samiullah Baloch case condemned “not the act but the person in perpetuity. Does it accord with Islamic injunctions?”
Siddiqui replied in the negative, adding that it did not accord with Articles 62 and 63 either. “All punishments in [Article] 63 are timebound,” he added.
The hearing was later adjourned till 9am tomorrow.
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