Islamabad:the Supreme Court on Friday resumed hearing 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 Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, is hearing the case.
The proceedings are being broadcast live on the apex court’s website.
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?”
In his response, Makhdoom said Article 62(1)(f) does not say that this is a declaration of the civil court. He added that the Constitution keeps qualification and disqualification separate.
“Article 62 applies pre-election, post-election or any time?” Justice Mazhad inquired, to which the lawyer replied Article 63 applied at any time while Article 62 applied only at the time of elections.
Here, the CJP interjected that the court had “bummed down in restricting ourselves to reading just a particular provision of the Constitution and we seem to have forgotten the Constitution as a whole”.
“What is the Constitution all about? What does it do? What are the fundamental rights?” the top judge asked, lamenting that the constitutional history of Pakistan was being disregarded.
“We are disregarding the fact why these amendments were brought into the Constitution, we are disregarding the fact that original Constitution has a greater sanctity than amendments brought unless there are such amendments which enable to serve the people better,” Justice Isa remarked.
He recalled that there was “successive encroachment” made into the Constitution throughout history. “Disregard how it came into the Constitution, now you are stuck with the language of the Constitution,” the apex court judge said, stressing that he could not forget the history of Pakistan.
“We had given public notice in newspapers but not a single political party came before us that this is a good interpretation of the Constitution,” CJP Isa noted. He highlighted that there must be some logic and reasoning behind lifetime disqualification, saying that a person who “destroyed Pakistan” was allowed to contest elections but others were disqualified for life just for some errors in the nomination papers.
“Have we lost all logic and sensibilities?” the chief justice asked. “Will you concede that parliamentarians in Pakistan are the best in the world? Does any other country have this test for parliamentarians? So if we have this test […] that means this is not even a workable law. This is just words on a piece of paper which I can use for my personal projects.”
For his part, Makhdoom referred to a US SC judgment where it had rejected new qualifications for lawmakers sought by Congress. Coming to lifetime disqualification, he said: “The Parliament in the 18th Amendment did not mention that the declaration will remain forever.”
