Article 62(1)(f) carries ambiguity, admits CJP

* Counsel argues disqualification period must not be more than five years * Justice Ijaz wonders how a 'dishonest' person can turn 'honest' after some time

ISLAMABAD: Chief Justice of Pakistan (CJP) Mian Saqib Nisar on Thursday admitted that Article 62(1)(f) of the constitution carried ‘ambiguity’ and that its interpretation was a difficult task.

He was heading a five-member larger bench of the Supreme Court comprising Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah. The bench is hearing pleas of several parliamentarians who were disqualified for possessing fake degrees.

The court held that it would not further hear counsels for the petitioners and directed the attorney general to advance his arguments on Monday.

The bench has to interpret Article 62(1)(f) of the constitution to determine the period of disqualification of a disqualified lawmakers.

Asma Jahangir, noted human rights activist and counsel for Rai Hassan Nawaz, a disqualified lawmaker of Pakistan Tehreek-e-Insaf (PTI), stated that her client was disqualified for not declaring the assets of his company despite the fact that those assets had already been sold and the company was not even on his name.

She argued that fundamental rights are the heart and spirit of the constitution. She said no declaration of court was required to examine the eligibility of a candidate for the election and it was the will of the voters to vote for the person of their choice.

She said Article 62 (1)(f) had ambiguity in it. She said how the character of a person could be assessed. She said it was not clear that which court would give the declaration on character.

She said the question of eligibility and qualification does not matter for the voters. She argued that articles 62 and 63 of the constitution should be read jointly and the disqualification period of a lawmaker should not be more than five years.

She said if interpretation of Article 62 (1)(f) was an uphill task, then who will define the complex terms such as the ‘ideology of Pakistan’. The chief justice then stated that question of ideology was not before the court.

Asma contended that although parliament was not an independent and free body, however political matters should be decided by it. The judges, however, disagreed with her contention, saying that this notion was incorrect and parliament was a sovereign body.

Asma stated that the maximum period of disqualification should be five years, according to Article 62 of the constitution. She said any court order was not essential for disqualification of any lawmaker before 1985. She said before the constitution of 1962, then president Gen Ayub Khan had introduced Elected Bodies Disqualification Order (EBDO) of 1959 to wipe out an entire political class. She said these two laws had led to the disqualification of about 7,000 people. Asma said the court had conceded that the condition of graduation to contest elections had limited the choice of the voter.

“How a dishonest person can become honest after some time?” Justice Ijazul Ahsan wondered. He said standing of the ideal people should be very high. “Pakistan lacked people having such high standards, thus such people can only be brought from outside the country,” Asma regretted.

Justice Sajjad Ali Shah noted standards for the elected representatives and the common men should be different. He said a person disqualified for possessing a fake degree contested by-poll and came back with even more votes. Justice Sheikh Azmat Saeed viewed that the duration of disqualification should remain until the declaration holds the field.

The chief justice noted that the court may decide minimum and maximum sentences, adding that in such an instance the court would decide the sentence on case-to-case basis. He said all political parties retained Article 62(1)(f) in the 18th Amendment.

Meanwhile, the court adjourned the hearing till Monday, when the decision is likely to be reserved.

Published in Daily Times, February 9th 2018.