Court clarified that pendency of appeals, questions raised herein would not be used as pretext to delay forthcoming polls
ISLAMABAD: The Supreme Court (SC) has decided to club the appeals pertaining to disqualification of candidates and others involving the same question and fixed them for hearing in early January 2024 before a bench constituted by the committee under the Supreme Court (Practice and Procedure) Act 2023.
A three-member SC bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Aminuddin Khan and Justice Athar Minallah, issued a written order in the civil appeal numbers 981, 984 and 985 of 2018, Sardar Confucius Iman Qaisrani, appellant in CAs 981 and 985 of 2018, Mumtaz Ahmed, appellant in CA 984/2018 versus Sardar Mir Badshah Khan Qaisrani and others.
The court clarified that the pendency of these appeals and the questions raised herein would not be used as a pretext to delay the forthcoming general election, scheduled to be held on February 8, 2024.
“These cases and any others involving the same question, be fixed for hearing in early January 2024 before a bench constituted by the committee under the Act,” says the written order.
The court issued notices to the Attorney General for Pakistan (AGP) and to all the advocate generals of the provinces. The court also issued a notice to the Election Commission of Pakistan (ECP) with the direction that public notice be published in prominent English and Urdu newspaper having wide circulation, as the decision in these appeals may also affect those who are not parties hereto.
“Concise statements attending to the said constitutional and legal questions, without reference to facts and the particulars of individual cases may be filed,” says the written order.
The bench, while hearing the matter on December 11, had taken contradiction of its judgment and legislation made through an amendment to the Election Act pertaining to lifetime disqualification and issued notices to AGP, advocate generals of all the provinces as well as the Election Commission of Pakistan (ECP) for their assistance. During the hearing, Chief Justice Qazi Faez Isa had observed the Supreme Court’s judgment on lifetime disqualification and the amendments made in the Election Act 2017 could not exist, simultaneously.
The CJP further said that either the legislation enacted by parliament to Elections Act would prevail or the judgment delivered by the SC. The court had referred the matter to a three-member committee, constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 that takes the decision about the fixation of cases before benches of the apex court.
The SC judgment in the year 2018 had held that any person disqualified under Article 62(1)(f) of the Constitution would be considered as lifetime.
Later on, the former coalition government of PDM made an amendment to the Elections Act 2017, decreasing the legislator’s disqualification to five years retrospectively.
In its written order, the court noted that some candidates made misdeclarations in their requisite nomination papers, some produced degrees from unrecognised institutions and others fake degrees to show eligibility of their participation in the general election.
“This court had disqualified all such candidates and some also faced criminal prosecution. The court noted that respondent No.1 in Civil Appeals No.981 and 985 of 2018 was convicted for a period of two years, and we are informed that his appeal against conviction is pending before the Multan Bench of the Lahore High Court; however, for the person who purportedly produced a fake degree in Civil Appeal No.984 of 2018 there was no criminal prosecution.
“In view of the fact that a criminal appeal is pending adjudication before the Lahore High Court, we steered clear of this aspect and only concern ourselves with the question of disqualification of candidates,” says the written order.
During the course of hearing, the counsel for the appellants submitted before the court that disqualification was for life by relying on the decision in the case of Samiullah Baloch vs Abdul Karim Nausherwani (PLD 2018 Supreme Court 405), which held that when Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (‘the Constitution’) is attracted, the disqualification is for life.
However, the counsel for the respondent in Civil Appeal No.981 and 985 of 2018 disputed this and stated that the period of disqualification is for five years as per Section 232(2) of the Elections Act, 2017, provision for which was enacted through the Elections (Amendment) Act, 2023, promulgated on 26 June 2023.
The Additional Attorney General (‘AAG’) also relied on the said statutory provision, reproduced hereunder:
“232(2) Notwithstanding anything contained in any other provisions of this Act, and other law for the time being in force and judgment, order or decree of any court, including the Supreme Court and a High Court, the disqualification of a person to be elected, chosen or to remain as a member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly under paragraph (f) of clause (1) of Article 62 of the Constitution shall be for a period not exceeding five years from the declaration by the court of law in that regard and such declaration shall be subject to the due process of law.”
The court inquired from the counsel whether Section 232(2) of the Elections Act 2017 has been challenged and they said that they are not aware of a challenge thereto. However, the counsel were unanimous in stating that unless there was a clear pronouncement by this court on the matter, the returning officers in the forthcoming general elections may wonder whether to apply Section 232(2) of the Elections Act, 2017, or the said judgment of this court, which may create needless confusion in the elections and shall not be conducive to democracy.
The learned AAG pointed out that the Supreme Court (Practice and Procedure) Act, 2023 (‘the Act’) requires that where constitutional CAs-981, 984 and 985 of 2018.doc 3 interpretation is required, a bench of a minimum of five judges has to hear it.
He further stated that the interpretation of a federal law, the Constitution and applicability of the decision of Supreme Court is required, which will also impact elections to the provincial assemblies, and as such requisite notices be issued.