During the hearing of lifetime disqualification case of parliamentarians, Chief Justice of Pakistan, Justice Qazi Faez Isa has said that even Quaid-e-Azam Muhammad Ali Jinnah would have been disqualified under Article 62(1)(f) if he were here in 2002, reported 24NewsHD TV channel.
Attorney General for Pakistan Mansoor Usman Awan urged the Supreme Court to review its previous ruling on the lifetime disqualification of former prime minister and PML-N Quaid Nawaz Sharif.
Chief Justice of Pakistan Justice Qazi Faez Isa then inquired about the stance of the provincial advocate generals, to which they responded that they supported the AGP’s argument.
This happened as a seven-judge larger bench headed by the CJP and comprising of Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali took up the lifetime disqualification case on Tuesday.
At the outset of the hearing, Attorney General for Pakistan Mansoor Usman Awan appeared in the court and said that he was supporting the legislation to make the penalty of disqualification five years under Article 62(1)(f).
The Attorney General said that Nawaz Sharif's lifetime disqualification decision should be reconsidered. He requested a re-examination of the decision on the interpretation of lifetime disqualification under Article 62 (1)(f).
The Chief Justice inquired, "Attorney General! What is your position that the Election Act should be followed or the decisions of the Supreme Court?", to which the Attorney General replied that the court is requested to review the decision of lifetime disqualification. He said he would support the Election Act as it is a federal law.
During the hearing, Saqib Jilani, the lawyer of the petitioner against Mir Badshah Qaisrani, also opposed the lifetime disqualification. The lawyer said that he filed the application in 2018 when the decision of lifetime disqualification came under 62(1)(f). He said Section 232 has now been added to the Election Act, so he is not following the plea to the extent of lifelong disqualification.
It may be noted that the Supreme Court had taken notice of the inconsistency between the court decision and the Election Act, after which the case was scheduled for hearing today and a public advertisement was also issued in newspapers about the case.
The Chief Justice inquired whether anyone had challenged the Election Act 2017 in the court, to which the petitioner told the court that the Election Act had never been challenged in anyone's court. The Chief Justice asked if there is any provincial government that opposes the Election Act 2017, to which the provincial advocate generals stated in the court that all the provincial governments are supporting the Election Act 2017.
On this occasion, the Attorney General read out Article 62, 63 of the Constitution again. The Attorney General read out all the constitutional requirements for eligibility and disqualification to become a Member of Parliament. The Attorney General said that both Articles 62 and 63 are observed from the time of nomination papers. Both articles are applicable at the point of entry.
The Chief Justice said that some clauses are related to facts, they are easy. Some clauses are difficult, like the clause of good character. Having good knowledge of Islamic teachings is also a clause. “I don't know how many people will be able to pass this test? This amendment of the Election Act is not challenged. When there is an amendment, we accept it without disturbing the old decision.”
The Attorney General said that the impression may be that the Supreme Court decision was overwritten by a law. The Chief Justice said that now can we revisit the Samiullah Baloch decision. Attorney General said that in the Samiullah Baloch case, the court ignored one point. The court said that in a criminal case the prisoner goes to jail after conviction. Hence, the disqualification is less. The court did not see that Declaration 62 (1)(f) remains in field both in criminal cases.
The Chief Justice remarked that we are sinners and seek forgiveness from Allah. The period of disqualification is not mentioned in Article 62 but this gap was filled by the court. The Attorney General said that as long as there are judicial decisions, the declaration of lifetime disqualification remains in place. The Chief Justice remarked that even the Election Act has been implemented and it has not been challenged.
Justice Mansoor remarked that the question is whether it is possible to amend the constitution through sub-constitutional legislation.
The Chief Justice said that the period of disqualification is not fixed in the Constitution, this gap was filled by the courts.
Justice Mansoor Ali Shah asked the Attorney General on this occasion that the question is whether the disqualification period given in the Election Act will be a more important concept than the Constitution. It is a matter of interpretation of Article 63, if he commits grave treason, he can contest elections. A person convicted of a minor crime by a civil court cannot contest an election. Will the constitution have to be amended to overturn the decision of the Supreme Court? Is it possible what is written in the constitution can be changed by legislation?
Justice Muhammad Ali Mazhar said that Article 62(1)(f) of the Constitution does not mention the period of disqualification, to which the Attorney General said that the Supreme Court had said in its decision that as long as there is a judicial decision, the disqualification will remain for life.
Justice Mansoor Ali Shah remarked that in serious crimes like murder and treason, you can participate in elections after some time. He inquired that lifetime disqualification on the basis of minor reasons does not seem inappropriate.
The Chief Justice said that the language of Article 62(1)(g) and Article 63(1)(g) is the same. Under Article 63(1)(g), the person who violates national integrity and ideology is disqualified for 5 years. Attorney General said that if there is a case against a person, he can return after serving 2 years. But if there is no case against a person but a declaration comes, he cannot come again.
The Chief Justice inquired whether a person can say on oath that he is the owner of good character. If there was Quaid-e-Azam in 2002, he would have been disqualified.
Justice Jamal Mandukhel said that when unelected people make laws, it will be like this.
On this occasion, Jahangir Tareen's lawyer Makhdoom Ali Khan appeared in the court and he took the stand that he was in favor of fixing the period of disqualification for 5 years under Article 62(1)(f).
The Chief Justice remarked that the military dictator who trampled the Constitution in 1985 added Articles 62 and 63 to the Constitution.
Justice Mansoor Ali Shah said that the question is also whether Article 62 and 63 were sealed in the 18th Amendment.
The Chief Justice said that how can a martial law administrator set the eligibility criteria in the constitution?
Justice Muhammad Ali Mazhar said that the Supreme Court can only give a declaratory decision on disputes between provinces.
Petitioner Sanaullah Baloch said that since 50 years, the eligibility criteria of the members have been fixed in the law. The Chief Justice remarked that why no one was disqualified under 62(1)(f) earlier. Justice Mansoor Ali Shah said that the punishment for lying is life. Punishment for murder or treason is limited and he can also contest elections. This is beyond comprehension.
Justice Mansoor Ali Shah inquired that if a person is punished once, why is the matter not over? In the constitution, every sentence has a term, so how did the disqualification become lifelong?
The Chief Justice called Makhdoom Ali Khan to the rostrum, where he said that he is Jehangir Khan Tareen's lawyer in the present case.
The Chief Justice said that we were thinking of appointing you as a amicus curiae but you are already a party before us. He asked him to tell the court when these clauses were added to Article 62, to which Makhdoom Ali Khan replied that Article 62 was simple in the Constitution of Pakistan 1973 and additional provisions were added to Article 62 by Presidential Order 1985.
The Chief Justice said that it means Ziaul Haq added these clauses related to character. Was Ziaul Haq's character good? It is ironic that those who swear to protect the constitution should break the constitution and then make these amendments.
Jahangir Tareen's lawyer said that the judge who fixed the term of disqualification for life under Article 62(1)(f) changed his opinion in the Faisal Vawda case.
Later, the hearing of the case was adjourned till 11:30 on January 4.
The court said in the order that it would complete the hearing on the case by January 11. We will also appoint a judicial assistant in this case. If a senior advocate wants to provide judicial assistance, he can do so. All lawyers should appear in Islamabad in person instead of video link.
Reporter Amanat Gishkori