Lifetime bar on parliamentarians: Quaid-e-Azam too would have been disqualified in 2002: CJP

ISLAMABAD: Hearing a case related to the duration of disqualification of public office-holders under Article 62(1)(f) of the Constitution, Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa Tuesday remarked that graduation was the basic constitutional requirement for a candidate to contest the election and had Quaid-i-Azam been a candidate in the 2002 election, he would have been declared ineligible.

The chief justice headed a seven-member larger bench comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali.

Justice Isa made it clear that the constitutional issue of disqualification of legislators for life would be settled once and for all, and advised against assuming that a particular party was being favoured.

“This is a constitutional issue, which we are going to settle once and for all, and we will try to conclude it quickly in order to prevent confusion for the returning officers (ROs) while receiving nomination papers for the upcoming elections,” he remarked after hearing the parties.

The chief justice noted in the order that the senior counsel would be welcomed for assisting the court on the issue.

The court advised the counsel to come to Islamabad instead of arguing before the court through the video link from the other registries.

The chief justice said the court might consider appointing the amici curie (friends of court) for assistance on this important constitutional matter. The court also advised Sanaullah Baloch, brother of petitioner Samiullah Baloch, to engage his counsel.

It said although Sanaullah was an experienced parliamentarian, it would be appropriate for him to engage his counsel, as the issue was related to a constitutional matter.

The counsel for the parties, including Makhdoom Ali Khan, were directed to assist the court by highlighting the difference between the Representation of People’s Act 1976 and the new law Election Act 2017 with particular reference to the tenure of disqualification of MPs in both the laws under Articles 62 and 63 of the Constitution.

Sanaullah Baloch and Usman Khurram Raza supported lifetime disqualification of MPs, while advocate generals of all the provinces adopted the stance of Attorney General Mansoor Usman Awan who supported the Election Act 2017 as it was enacted by the federal government. The attorney general contended that the declaration of lifetime disqualification will remain intact until the top court’s decision in Samiullah Baloch case.

On December 11, 2023, Chief Justice Qazi Faez Isa while heading a three-member bench hearing a matter related to the disqualification of a former MP, took notice of contradiction between its judgment and the legislation made through an amendment to the Election Act pertaining to the lifetime disqualification.

On Tuesday, the chief justice sought the views of Attorney General Mansoor Usman Awan about the amendment made to Section 232 of the Election Act 2017.

Awan submitted that the court should review its decision given in Samiullah Baloch case.

Similarly, Saqib Jilani, counsel for the petitioner (opponent of Mir Badshah Qasarani), opposed lifetime disqualification stating that his client had filed a case in 2018 against Mir Badsha Qasarani when the verdict of the apex court on lifetime disqualification under Article 62(1)(f) came. “As Section 232 has been inserted to the Election Act 2017, hence I don’t want to pursue the case to the extent of lifetime disqualification,” he said.

At the outset of hearing, the attorney general read out the provisions of Article 62 and 63 of the Constitution related to the requirements for becoming a Member of Parliament.

He submitted that at the time of submission of nomination papers both conditions mentioned in Articles 62 and 63 of the Constitution had been examined. The chief justice observed that some of the provisions were related to facts and were easy, while some were difficult like the provisions related to good character.

Justice Syed Mansoor Ali Shah asked whether the period provided in the Election Act 2017 was more significant than the Constitution adding that it was a matter of interpretation of Article 63 of the Constitution.

The judge observed that if one were to commit serious sedition, he still could be eligible to contest the election while someone awarded a sentence for an ordinary crime could not.

“Whether an amendment will be made for abolishing the verdict of the Supreme Court and whether anything written in the constitution could be changed through legislation?” Justice Mansoor Ali Shah asked the AG. The chief justice observed that nobody had challenged the amendment made to the Election Act 2017.

The attorney general, however, submitted that as long as the verdict of the apex court was in filed, the declaration of lifetime disqualification still persists.

Justice Mansoor asked how the court could give a declaration against any person adding if someone’s character would be good if they repented after 20 years and became pious.

The attorney general contended that in Samiullah Baloch’s case, the apex court had ignored a point and did not consider that the declaration remained in the filed in both, Article 62(1(f) of the constitution and criminal cases.

The chief justice questioned whether a person could state on oath that he had a good character adding that according to the Islamic teachings no one could claim themselves to be of good character. The chief justice observed that the period of disqualification was not mentioned in Article 62 of the Constitution but given by the court as well. Justice Syed Mansoor Ali Shah asked why the matter did not come to an end after one had served his sentence.

“How it is possible that after completing his sentence, one cannot contest election?” the judge wondered.

“When the Constitution has specified the period of every sentence, then how disqualification could be for lifetime?” he questioned.

“If a person regrets and becomes a scholar, will he still remain disqualified for lifetime for his bad character?” the chief justice asked.

The chief justice invited Makhdoom Ali Khan to the rostrum to enlighten the court in this regard.

Khan submitted that he had also filed a CMA on behalf of his client Jehangir Khan Tarin, who was also disqualified for lifetime.

The chief justice asked when the provisions of disqualification were added to Article 62 of the Constitution.

Khan submitted that 62 was a simple article of the Constitution but Ziaul Haq inserted additional provisions in it through a Presidential Order in the year 1985.

“You mean Ziaul Haq added provisions pertaining to the character of a person. Was Ziaul Haq himself good by character? Whether a person who sent judges home and violated the Constitution could be of good character?” the chief justice remarked.

The chief justice observed that it was unfortunate that those who swear on oath to protect the Constitution, violate it by making amendments.

Meanwhile, the court adjourned the hearing for January 4.

Meanwhile, the Supreme Court suspended the Peshawar High Court’s (PHC) order that suspended the appointment of returning officer for PK-91 Kohat II, Khyber Pakhtunkhwa (KP) by the Election Commission of Pakistan.

Hearing the appeal of Election Commission of Pakistan, a three-member bench of the apex court — headed by Chief Justice Qazi Faez Isa — suspended the PHC order.

The Election Commission of Pakistan (ECP) had filed an appeal with the Supreme Court against the Peshawar High Court’s order.

The court observed that it seemed some tactics were being used to delay the upcoming elections.

The chief justice asked the counsel for the petitioner if he wanted a returning officer of his choice adding that one RO got sick, hence another was appointed in his place.

The counsel for the ECP told the court that in the evening of December 27, the high court issued the verdict adding that the nomination papers of some 27 candidates were filed. The electoral body filed leave to appeal under Article 185(3) of the Constitution against the order passed by Peshawar High Court on December 27.

The petitioners had assailed the ECP’s notification of December 25, 2023 substituting the returning officer for KP-91, Kohat II. Issuing notice to the ECP, the high court suspended the aforesaid notification of the electoral body.

The ECP prayed the apex court to grant it leave to appeal from the impugned order passed by the high court on December 27 in the best interest of justice.