Daily Times

CJP Qaiz Faez Isa on Thursday stated that debarring someone from office for life was the same as condemning them for life.

“If you debar someone for life, you condemn that person for life. There is no redemption or forgiveness which the Samiullah Baloch [decision] also touches upon but does not attend to it at all,” he remarked as the Supreme Court heard a set of petitions seeking to determine whether the disqualification period for a lawmaker was for five years or a lifetime. A seven-member larger bench, headed by the CJP conducted the six hour-long marathon proceedings that were broadcast live of the apex court’s website.

At the outset of the hearing, Advocate Khurram Raza raised questions about the maintainability of the proceedings. “Under what provision of law are these proceedings being conducted?” he asked. However, the bench directed Raza to stick to his petition.

Resuming his arguments, the counsel said that the election tribunal could only grant a declaration and that the right could not be exercised by the high court or SC directly. However, he continued, cases against orders passed by the tribunal could be heard by the apex court under the scope of appeal.

For his part, Raza said any declaration in the election tribunal or by the SC in the appellate jurisdiction was covered in Article 62(1)(f).

“Let’s clarify, the election tribunal will exercise powers only under the law […] therefore when the SC is exercising such powers it cannot have more powers than the election tribunal or the Election Commission of Pakistan,” Justice Isa said.

“Unless you can show that the ECP and the election tribunal can also disqualify for life, then that power will also be with the SC, otherwise it will be an additional power given to the Supreme Court under Article 62(1)(f),” he added. For his part, Raza said the SC can give a declaration, pertaining to lifetime disqualification, only if “it had arisen out of the tribunal” but not on its own.

Meanwhile, the CJP said Article 63 of the Constitution talks about disqualification, but only for five years. “Where is that provision which says [a lawmaker] is disqualified for life? Where is the power in this court to do this? That is the essential question,” he stressed. At one point, Justice Shah asked: “Does it not appear odd to you that for other crimes as big as treason, you could always come back and contest elections but for a civil wrong […] the punishment in a way is for life. But if I were to commit a murder, rape or kidnapping […] I could come back and contest elections.”

Raza replied that these arguments were present in Islamic principles. However, the CJP took exception to the contention. The CJP also inquired if the provisions of disqualification were amended in the Constitution by a dictator, saying that a “hypocrite was worse than a non-believer”. He lamented that amendments were made on “gun points” and asked how the wisdom of five judges sitting in a court could be more than the people sitting in the Parliament. “No matter how much you despise the members of the assembly, they are our representatives,” the top judge remarked. “You cannot give precedence to the wisdom of dictators over the wisdom of assembly members.”

Further, the CJP said the court wanted “clarity” in the run-up to elections and to prevent confusion for returning officers regarding the law they needed to follow.

Subsequently, Advocate Usman Karim came to the rostrum. He highlighted that the preconditions of saadiq and ameen were also applied to non-Muslims, arguing that hence these conditions were not in reference to Islam.

Justice Mandokhail also inquired who was responsible for determining if the character of a person was good or not, to which the lawyer said only God could do it. Subsequently, the court adjourned the proceedings for a break. When the hearing resumed, Bhandari, who was appointed amici to assist the SC in the case, contended that the returning officers had two norms before them, the Elections Act amendment and the Sammiullah case judgment, and they had to enforce the higher of both norms.

He also stated that as per his reading of the 2018 case judgment, he did not see it as laying down a permanent disqualification but it was an indefinite disqualification – which can come to an end. “The Samiullah case cannot be overruled but there are problems with it that can be fixed,” the lawyer added. Bhandari further argued that the Parliament never even tried to change the language of Articles 62 and 63, at which the CJP said that the entire country was closed down once when the language of the oath was changed. “Maybe this is why they left it. The state must have thought who would deal with these people,” the top judge said. For his part, Bhandari stated that the key to resolving the issue was in the Samiullah case judgment, which mentioned the concept of repentance. He highlighted that the returning officer could not issue the declaration of disqualification, while the election tribunal could do the same on the basis of established facts. At that, CJP Isa remarked how a court could determine if someone was honest and truthful. “How can courts determine honesty, trustworthiness and non-wastefulness?” he asked, pointing out that the SC did everything in the lifetime disqualification case. “Where is it written in the Constitution that the Supreme Court can give such a declaration?” Justice Shah further inquired.

The CJP asked if a person could approach a court after disqualification and say he had now repented. “So at the end of the day, you are saying it is all to do with our feelings. It is what we felt,” Justice Isa lamented. Justice Isa also noted that people “who made Pakistan hostage” never repented. “All these things have come during the martial laws, but no one mentions this.” In his defence, Bhandari said he criticised both military dictators and those who brought the 18th Amendment. However, the CJP intervened and said it was easy to criticise parliamentarians.

At one point, Justice Mandokhail asked if the apex court could declare any person saadiq and ameen in the Faisal Vawda case while Justice Hilali asked if there was a criterion that a judge needed to meet to declare someone honest and truthful. In his arguments, lawyer Faisal Siddiqui – who was appointed the amicus curiae – focused on the issue of the time period of disqualification under Article 62(1)f. Siddiqui contended that the verdict in the Samiullah Baloch case must be “overruled” because “it poses numerous problems as far as constitutional interpretation is concerned”. The chief justice then wondered about the court’s need to overrule the verdict when the recent amendments to the Elections Act had already done so. In response, Siddiqui said a statutory law could not overrule the constitutional interpretation of a decision by the apex court. Siddiqui further said that the Samiullah Baloch decision was also “very problematic in terms of democratic growth in the country”. The lawyer argued that the use of the word “permanent” was what created issues in the Samiullah Baloch verdict since it made the period of disqualification permanent. Siddiqui argued that when “constitutional silences” needed to be filled, it should be done considering that the legislature had no intention and any judicial interpretation was being taken on an issue on which there was no definitive answer.

Here, CJP Isa interjected and asked why a third consideration should not be made “when there is a constitutional absence, Constitution makers intentionally opened the field for legislation, not for constitutional interpretation which can be changed from time to time.” Agreeing with the top judge, Siddiqui said: “That is why the constitutional implication which should be drawn from that absence should be such that it should be changeable in the future through statutory interpretation” or legislation. He said another “obvious implication” of any absence was that any declaration by the court should apply to the next election. The lawyer was also asked about the process of clearing an individual, who had already been declared a “fraudster”, for the next general election. Here, the chief justice remarked that a solution to this conundrum was found in Islam. “No person is bad per se. A person’s acts are bad,” the top judge remarked. “If you debar someone for life, you condemn that person for life. There is no redemption or forgiveness which Samiullah Baloch [decision] also touches upon but does not attend to it at all,” he observed. The hearing was later adjourned till 9am today.