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January 30, 2018
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Whether SC can punish anyone sans declaring ‘Sadiq, Ameen’

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January 30, 2018

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ISLAMABAD: Leading constitutional and legal questions, the most vital being the determination of time-span of ban on disqualified persons to contest elections, will arise for authoritative adjudication by the Supreme Court as it takes up a slew of appeals to interpret Article 62(1)(f) of the Constitution.

One of the foremost points to be argued by lawyers will be whether or not the declaration of a court of law that the person in question is not sagacious, righteous, non-profligate, honest and “ameen” is obligatory to conclusively oust him from any electoral contest, and whether a superior court can punish him directly without such pronouncement.

The five-member bench headed by Chief Justice Mian Saqib Nisar has also issued notices to deposed Prime Minister Nawaz Sharif and senior Pakistan Tehreek-e-Insaf (PTI) leader Jehangir Tareen, who have also been disqualified under Article 62(1)(f) to hear them in these proceedings. As they have not approached the top court for interpretation of this provision, they are not bound to become party, according to a prominent lawyer. However, they will suffer or benefit from the impending judgement, which will specify the period of disqualification under this clause.

Article 62(1)(f), which will be mainly under debate, says a person shall not be qualified to be elected or chosen as a member of Parliament unless he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.

Eminent constitutional lawyer Wasim Sajjad will dilate on the mandatory requirement of a declaration of a court of law for ouster of a federal or provincial legislator. He will stand for former member of the Sindh Assembly Allah Dino Bhayo.

Bhayo was disqualified by the returning officer (RO) from the contest for possessing a fake degree in the 2008 elections. In 2013, he was again penalised for the same reason. The Supreme Court had upheld this decision.

Wasim Sajjad filed a review petition against this judgement arguing that the RO was not a court that can make the requisite declaration, which has to come from a court of law. The previous decision had been handed down by a three-judge bench headed by former Chief Justice Iftikhar Muhammad Chaudhry.

The imminent verdict will supersede all the previous judgements of the Supreme Court on the duration of ineligibility, delivered by it in different cases. A total of 17 pleas will be heard together, and, if Nawaz Sharif and Tareen also join the proceedings, the tally will go up to 19.

The affected people have hired a heavy battalion of lawyers and their arguments will revolve around the single point—relating to the length of disqualification under Article 62(1(f).

Their consensus assertions will be that the ineligibility so imposed should be one time; that when the relevant provision was silent on the duration, it should not be construed that the disqualification was perpetual, and that every punishment provided in the Constitution and laws specifies the period of ineligibility.

An apparent purpose of taking up all the petitions clubbed together now is that the apex court wants to decide the critical question before the forthcoming elections so that those disqualified have a clear view about their eligibility or otherwise.

In some cases involving the presents plea, the litigants have already passed a few years of disqualification. In case, the period is fixed, they might get the ineligibility removed to be in a position to stand in the next polls. The most recent disqualifications are those of Nawaz Sharif and Tareen.

Nawaz Sharif declared the other day that he is not concerned whether his ineligibility is one time, for life or for any length of time as his contact with the masses can’t be severed by the court judgements. In his review petition against the July 28 ruling, his lawyer Khawaja Haris had cursorily raised the point pertaining to the duration of disqualification but had not pressed it for a decision.

Tareen’s review plea is pending disposal with the Supreme Court. However, before it is decided, he has been issued notice in the instant petitions to know his stand on the extent of disqualification.

While hearing another case the other day, Chief Justice Mian Saqib Nisar had stated that it would be decided whether the ineligibility was for one year, five years or for life.

Legal brains differ on the question. Some say when Article 62(1)(f) has not fixed the period, it is assumed that it is perpetual. But others say that it is unfair to make such presumption and stress that the ineligibility is one time. They plead that it is not necessary that an MP declared to be not honest under this provision will remain so for life and that a possibility for change of mind always exists.

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