No consequences for those who destroy country while single error in papers disqualifies person for life, muses CJP

ISLAMABAD: The Supreme Court Friday reserved its judgment on the lifetime disqualification of parliamentarians under Article 62(1)(f) of the Constitution.

A seven-member larger bench — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa — reserved the verdict after the counsel for the parties, attorney general as well as amici curie concluded their arguments. The other members of the bench were Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali.

“We will try to come up with a shorter order as soon as possible. Probably, not today but it would be very soon, God willing,” said Justice Isa said after the proceedings, broadcast live on the apex court website and YouTube.

The chief justice observed that they had issued a public notice on this important constitutional matter; however, not a single political party showed interest in becoming a party to the case. “A single error in nomination papers disqualifies a person for life,” the chief justice remarked. He said all election-related cases would be scheduled in the regular bench next week, adding that cases of individuals in this case would not be heard except those related to the constitutional interpretation.

Jahangir Tareen’s lawyer Makhdoom Ali Khan and Attorney General Mansoor Usman Awan pleaded for the re-examination of Samiullah Baloch case and took the position that the current general elections would be affected in the presence of this decision. The attorney general submitted that the amended Election Act 2017, setting the period of disqualification at five years under Article 62, would not be considered an effective law unless the law laid down in the Samiullah Baloch case expired.

The AG submitted that in the Ishaq Khakwani case, a seven-member bench of the Supreme Court had formulated four questions for this court and to answer them, the court should determine what a court of law was according to Article 62 and who would give the declaration of disqualification. “The matter should be left to parliament,” the AG pleaded, while PTI’s counsel Advocate Shoaib Shaheen opposed re-examination of the court decision and said lifelong disqualification could only be removed through a constitutional amendment.

The chief justice remarked that in case of lifetime disqualification, “we are ignoring the fundamental constitutional rights and history” adding “There are no consequences for those who destroy a country but a mistake in the nomination papers disqualifies us for life.”

“Why are we limiting it to only one specific part of the Constitution and its language? Why are we ignoring the constitutional history and fundamental rights? Only one general put the clause of 62(1(f) and we all became bound? Is there such a test for politicians in any other country? Does any other country in the world have such a tough test for a candidate before elections?”

The chief justice said the declaration could be determined tomorrow by the parliament adding, “Let the parliament do its work; democracy means the opinion of the people. We cannot fill the constitutional gap through court decisions.” Raising questions on the decision of the five-member bench, the chief justice remarked, “Either we have to respect the judges of the Supreme Court or not”.

“You want us to hold that we overrule Samiullah Baloch and stop, nothing more?” he asked. He said Justice Asif Saeed Khosa wrote a heavy note in the Khakwani case saying we cannot do anything in this matter.

Justice Musarrat Hilali asked how it was possible that a specific case was made against a person and the whole circle suffered its consequences. “If the court declares someone dishonest but the society considers him honest, what will happen to the court’s decision?” she asked.

PTI counsel Shoaib Shaheen opposed the plea of re-visiting Samiullah Baloch’s case with the contention that the matter of lifetime disqualification could only be abolished through a constitutional amendment. The chief justice, however, observed that “we are ignoring basic fundamental rights as well as history in the matter of lifetime disqualification.”

He said in the Ishaq Khakwani’s case, the seven-member bench had held that the matter would be taken up by another larger bench but later on how a five-member bench announced the decision.

Makhdoom Ali Khan, counsel for Jehangir Tarin, submitted that the basic question before the court was related to its earlier judgment passed in the Samiullah Baloch case wherein the court did not talk about a declaration made under the penal laws.

The counsel submitted that in 1985, Article 62(1(f) was made part of the Constitution but now both articles 62 and 63 were interlinked and Article 62 could not be looked at without Article 61. To a question posed by Justice Jamal Khan Mandokhel, Makhdoom Ali Khan said the Constitution talked about the court of law, including civil and criminal. The chief justice asked the counsel if there was such a qualification for members of parliament anywhere in the world. Khan replied that there was no such qualification standard anywhere in the world. Justice Mansoor Ali Shah said the issue of determining the year had not come to the court. “Can we read down the 232 (3); can the court say that the parliament should fix the 232 (3) in such a way that if it is rejected by the civil court, then the punishment will be 5 years.” Khan submitted that the Supreme Court was hearing appeals under 185, 232(3) which could be abolished by the next parliament. He said the court had to decide whether Samiullah Baloch case was valid or not. If Samiullah Baloch case is declared null and void, then the law will apply. Justice Afridi remarked, “I think life is not mentioned in the judgment.”

To a court query, Makhdoom Ali Khan said if the law was invalid in America, the Congress made a new law, and the American Congress convinced the court to re-evaluate the decision. Justice Mansoor Ali Shah asked whether a constitutional provision could be regulated by the common law. The chief justice remarked that the practice and procedure case had laid down principles that could be regulated by the law. “If we look at the cases of Shakeel Awan, Khawaja Asif, Sheikh Rasheed, the judge who wrote the judgment of unfitness kept changing his position gradually,” Makhdoom Ali Khan submitted. Justice Jamal Mandokhel asked if there was any such example after Samiullah Baloch where one had been disqualified for life. Khan replied that there was no such example.