ISLAMABAD: The seven-member larger bench of Supreme Court (SC) on Friday reserved its verdict on a set of petitions seeking to determine period for disqualification of a lawmaker with Chief Justice of Pakistan (CJP) Qazi Faez Isa said to issue a “shorter order as soon as possible.”
“Probably not today but God willing, we will as soon as possible come up with a shorter order” CJP Qazi Faez Isa said the concluding remarks of the hearing.
Headed by CJP Qazi Faiz Isa, the seven-member larger bench, comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, held marathon hearing in the case, while was broadcast live on the apex court’s website.
The SC bench is hearing a set of 15 petitions to determine the period of disqualification under Article 62(1)(f), especially in light of the inconsistencies found between two constitutional provisions — one prescribing a lifetime ban while the other proposing a five-year disqualification period. The court will decide whether the 2018 Samiullah Baloch case, or the 2023 amendments to the Elections Act 2017 that reduced the ineligibility period to five years, will prevail.
The law is the same provision under which former prime minister Nawaz Sharif and Istehkam-i-Pakistan Party Chairman Jahangir Tareen were disqualified.
The legal conundrum arose in view of a 2018 SC judgment in the Samiullah Baloch case, when the apex court ruled that disqualification handed down under Article 62(1)(f) was supposed to be “permanent”. The verdict was issued by former chief justice Mian Saqib Nisar, Justice Sheikh Azmat Saeed, ex-CJP Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah.
However, in June 2023, an amendment was made to the Elections Act 2017, specifying that the period of the electoral disqualification will be for five years, not for life.
The dilemma cropped up in the top court last month during an electoral disqualification dispute moved by Sardar Mir Badshah Khan Qaisarani, who was disqualified for producing a fake degree. His appeal is still pending before the Lahore High Court.
At the previous hearing, Justice Isa had regretted that constitutional amendments dealing with the disqualification of lawmakers under Article 62(1)(f) were thrust upon parliament under peculiar circumstances, without any debate.
“I have repeatedly emphasised that there is a need to understand the broader picture and the way such amendments in the Constitution were brought in,” the CJP had observed, adding these things were introduced during the martial law by dictators, when the will of one individual prevailed, merely because of the fear that otherwise the individual may perpetuate his rule for another 25 years. “Thus, these provisions were made fait accompli,” he had said.
The hearing
As the proceedings commenced today, the bench summoned Advocate Makhdoom Ali Khan, the lawyer of Jahangir Khan Tareen, to come to the rostrum.
The lawyer stated that the Samiullah Baloch case made a “complete disconnect” between Article 62 and Article 63 of the Constitution, which talk about the disqualification of lawmakers.
“It observes that these are two different sets and two different considerations prevail, therefore the language of Article 63 would not be allowed to inform the language of Article 62 of the Constitution,” he contended.
Makhdoom maintained that the SC, in the said case, was not talking about a declaration made under the penal laws of the country.
At one point, Justice Shah pointed out a benefit that could be drawn from the Samiullah case judgment was that the nature of the declaration was obvious while the duration of the disqualification remains unclear.
For his part, Makhdoom said: “[…] I could not find a case for any common law jurisdiction where as a result of civil liability and a decree of a civil court, a citizen is denied the right to exercise, or the protection of a fundamental right guaranteed by the Constitution for the rest of his life.”
He further put forward questions regarding which court was capable of granting a declaration under the civil laws of the country that a person is honest and truthful. “There is no civil court in this country which can grant that,” he contended, adding that judges usually grant declarations on a legal title or legal character.
Here, Justice Mandokhail asked if a civil court could issue a declaration of disqualification. The lawyer replied in the negative.
Meanwhile, Justice Shah asked: “Can legislation put a timeframe on this declaration? Could that be possible? Could legislation say that this declaration will continue forever, but for the purposes of elections will have a timeframe?”
