‘No one can fire judges’

ISLAMABAD: Chief Justice of Pakistan (CJP) Mian Saqib Nisar on Wednesday said they will not react to criticism as the people of Pakistan are the best judge and see everything, adding that no one can oust judges.

A three-member bench of the apex court, headed by Chief Justice Mian Saqib Nisar, resumed hearing in the petitions, challenging the controversial Election Act 2017 that paved the way for deposed prime minister Mian Nawaz Sharif to become the head of his party — Pakistan Muslim League-Nawaz (PML-N).

Latif Khosa, representing the Pakistan People’s Party, while commencing his arguments, said the freedom of speech does not mean that they [PML-N leaders] start abusing the apex court.Justice Ijazul Ahsan, a member of the bench, inquired from the counsel whether rhetoric and attacking the apex court does fall under the purview of the Article 5 of Constitution.

Khosa said it is their [PML-N leaders] attitude that if a judgment comes against them, then they start criticising the courts. He said people should respect not only the apex court but all the courts. He said if people would stop respecting the court, then the society would become uncivilised and the whole structure would be destroyed and then there would be the law of jungle.

The counsel said that these are not courts of four or five judges but the court of the people of Pakistan, adding that the judges are sitting with the backing of the people. “He [Nawaz Sharif] has not been removed by the apex court, but the people of Pakistan. This is not just the humiliation of the court but the humiliation of the people of Pakistan. This is act of treason.”

Latif Khosa contended that the column about assets has been excluded in the nomination form so that the legislators are not held accountable about their wealth.The chief justice said that all parties in parliament took part in passing the Election Act. He told Khosa that his party (PPP) also gave vote in favour of the Election Act and said therefore they had asked the Attorney General for Pakistan to provide the record of debate for the bill.

The chief justice questioned whether the colourable legislation could be struck down by the apex court. Khosa said that there are a number of judgments that the court could strike down laws.

Latif Khosa wondered as to why the judiciary is showing restraint on former prime minister Nawaz Sharif’s speeches against the judges. “I think you don’t know about wisdom,” the CJ told him.

The chief justice said the people of Pakistan are the backbone and strength of the judiciary. “When they are with us then no one can harm us.” He said that the judiciary neither can hold public rallies nor make people raise hands.

Meanwhile, a five-member larger bench of the apex court, headed by Chief Justice Mian Saqib Nisar, resumed hearing in the petitions praying for determining the length of period for disqualification of parliamentarians.

Continuing his arguments, Barrister Ali Zafar, amicus curie, submitted before the court that parliament deliberately did not give any time in Article 62 of the Constitution and reposed its trust in the courts to determine the disqualification period within the minimum of five years and the maximum of the sentence that could be imposed upon him had he been convicted for an offence.

He argued that some persons, like the former prime minister Mian Nawaz Sharif, who had been disqualified under Article 62 for an offence which under Section 78 of the Representation of People Act (ROPA) 1976 carries a sentence of up to three years, the period of disqualification for such a person would be a total of three years of the conviction and a further five years, therefore, totaling to a period of disqualification lasting eight years from the date of declaration by a court.

Similarly in respect of those having fake degrees, Ali Zafar contended, they were disqualified for a period of sentence that could be given under the Pakistan Penal Code of up to seven years + a further five years i.e. for a period of 12 years. During the course of hearing, the court made reply of former prime minister Nawaz Sharif part of proceedings of the instant matter.

Chief Justice Mian Saqib Nisar said they have received concise statement of Mian Muhammad Nawaz Sharif, as no one even the Advocate on Record made appearance on his behalf, so why not dismissed it; but they have decided otherwise and made it part of the proceedings.

The chief justice appreciating the presence of Raja Zafarul Haq said your presence makes us feel comfortable. The CJ asked him to bring the disgruntled leaders of the PML-N who criticise the courts. “Bring them, must bring them", and see if we get scared.

Barrister Ali Zafar submitted that in order to understand the question, the Constitution has to be interpreted according to the principles of “structural modality” which is also known as the ‘rule of harmony’, ‘rule of completeness’ or ‘rule of exhaustiveness'.

He said the entire Constitution has to be read together and it has to be seen how the Constitution deals with similar situations as no particular Article of the Constitution lives in a vacuum, rather each Article relies and builds upon other provisions of the Constitution.

The amicus curie said there are three possible time periods which can be laid down by the court in this case at one extreme is that a person is disqualified for life while the other extreme is that the person, who is not 'Sadiq and Ameen', is disqualified only for the term of Parliament.

He said both the extremes are not correct but rather under Article 62 the Supreme Court has been given the jurisdiction by Parliament to determine the period of disqualification which cannot be less than five years and may extend to the time period for which the person could be sentenced.

He said the Constitution is a living document, a living organism and has even been compared with a living tree which grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people.

Based on this principle, he stated that a wider construction has to be given to the various provisions in order to meet the changing circumstances with the passage of time. Barrister Zafar submitted that in the Constitution, the law making is with Parliament and judges do not make laws. Relying on the decision of Justice Mian Saqib Nisar in an earlier case, he said that it has now been established that there can be no judicial aggrandizement of power at the expense of the elected representatives of the people and Judges cannot act or take away or modify the latter of the law.

He then gave six modalities of interpretation which the Court can use to interpret Articles 62 and 63 including historical, textural, ethical and potential doctrine but stressed that the most important modality used when the Constitution is silent is the “structural modality”.

Explaining in detail these two Articles, he argued that there is no difference practically in Articles 62 and 63 and both are self-executory and contain within them the rights of the people of Pakistan and the fundamental rights of those who want to participate in elections.

Barrister Zafar said that applying the structural modality, since both Articles 62 and 63 deals with the same situation, both have to be read together. If a person is convicted under Article 63(1)(h) for an offence of moral turpitude and sentenced to the maximum sentence of seven years, and then a further period of five years has passed after his release (making a total period of 12 years), then he is entitled to contest elections.

However, at the same time, such a person once convicted would not be 'Sadiq and Ameen'. If Article 62(1)(f) is interpreted to mean that the disqualification of declaration applies for life, then the person, in spite of the 15 years period having passed, would still be disqualified.

He said that it was a direct conflict and needed to be harmonised according to the structural modality otherwise Article 63(1)(h) would become redundant.