ISLAMABAD: The Supreme Court on Wednesday observed that a dishonest person should be disqualified for lifetime and questioned whether he could contest elections after three months. It said dishonesty meant cheating and fraud, asking how a court declaration could end automatically.
The apex court gave one week’s time to deposed prime minister Nawaz Sharif to present his arguments in a set of appeals, seeking interpretation and determination of length of disqualification in the available provisions of the Constitution as well as election laws.
A five-member larger bench headed by Chief Justice Saqib Nisar and comprising Justice Azmat Saeed Sheikh, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah was hearing 13 identical pleas on the issue.
During the hearing, the chief justice remarked that the apex court had powers to interpret the Constitution, adding that they had already declared lifetime disqualification over CNIC. Justice Ijaz remarked that the parliament determined the disqualification period in Article 63 but not in Article 62, meaning that it did not want to end the disqualification under Article 62.
Justice Bandial asked whether a person sentenced for treason could be eligible to contest elections. Azam Nazeer Tarar appeared before the larger bench and sought a three-day time for Nawaz to engage the counsel in the instant matter. The court, however, gave one week’s time to the former prime minister.
On January 26, the Supreme Court had issued notices to deposed Nawaz and PTI’s Jehangir Khan Tareen with a direction to either appear in person or through their counsels. In pursuance of the court’s direction, Jehangir Tareen the other day appeared before the court along with his counsel, however, Nawaz did not turn up either in person or through his counsel.
Similarly, the court the other day also notified for the information of the general public that if any person including any voter or member or leader of any political party who might consider it likely to be affected by the decision of the aforesaid cases in one way or another could approach the Supreme Court.
The court had stated that if no one appeared, the matter would be decided ex parte. On Wednesday, the lawyers representing the petitioners as well as the amicus curie contended that the duration of disqualification was not mentioned under Article 62(1)(f). They contended that there were certain provisions in the Constitution and election laws that mentioned the time-frame for disqualification, mostly five years.
Wasim Sajjad – the counsel for former member of the Sindh Assembly Allah Dino Bhayo – said the present form of Article 62 was confusing and stressed that there was a need to resolve the controversy around it. The Article 62 (1)(f) does not give ‘punishment’ which is mentioned in Article 63 of the Constitution, he said, adding that according to said article, the duration of disqualification would be five years.
Bhayo was barred by the returning officer 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. The amicus curie, Munir A Malik, contended that it was a fundamental right of every individual to contest in elections and stressed that articles 62 and 63 should be read in a manner wherein the fundamental rights of any person were not infringed.
He said the length of disqualification was mentioned in Article 63 of the Constitution, which stated that the parliament members would be disqualified for five years. Similarly, he said barring a person for lifetime from becoming a parliamentarian was a violation of fundamental rights guaranteed by the Constitution.
Commencing his arguments, Sikandar Bashir Mohmand – the counsel for Tareen who was also disqualified by the apex court – argued that his client had also filed a review petition in the court against his disqualification. He submitted that the instant matter under discussion was quite significant and the apex court would have to determine the length of disqualification through already available in the provisions of the Constitution, NAB law as well as under the election law known as Representation of People Act (ROPA) 1976.
According to Mohmand, disqualification under Article 62(1)(f) of the Constitution was not perpetual, permanent or incurable and civil, not criminal, in nature. “There is a guidance in Article 63 of the Constitution, Section 100 of the Representation of People Act, 1976 now section 232 of Election Act, 2017 and Section 15 of the National Accountability Ordinance, 1999 on the minimum and maximum length of the disqualification accompanying a declaration under Article 62(1)(f) of the constitution.
He submitted that these factors may be taken into consideration by the apex court in determining the length or otherwise of the bar accompanying disqualification under Article 62(1)(f) of the Constitution on account of the enforcement of fundamental rights of the disqualified citizens under Article 17(2).
He said the subject matter, nature and scope of violation of legal obligation – which may lead to a declaration under Article 62(1)(f) of the Constitution – were wide, therefore, it was unjust and discriminatory to penalise all violations with the same length of disqualification.
Justice Ijazul Ahsan questioned as to why Article 62(1)(f) was left intact and no time period of disqualification was prescribed. At this, Mohmand cited some judgments and in one of the judgment, he said, the court held that once there was a disqualification, it was always disqualification as perpetual. He, however, said no reasons were given for the purpose.
Justice Umer Ata Bandial remarked that there was a difference between qualification and disqualification, and the public representatives were the trustees of the people. Later, the court adjourned the hearing until today (Thursday).
