{"id":44123,"date":"2024-01-05T10:45:55","date_gmt":"2024-01-05T10:45:55","guid":{"rendered":"https:\/\/news.pakistaninewspaperlist.com\/sc-reserves-verdict-in-lifetime-disqualification-case\/"},"modified":"2024-01-05T10:45:55","modified_gmt":"2024-01-05T10:45:55","slug":"sc-reserves-verdict-in-lifetime-disqualification-case","status":"publish","type":"post","link":"https:\/\/pakistaninewspaperlist.com\/news\/sc-reserves-verdict-in-lifetime-disqualification-case\/","title":{"rendered":"SC reserves verdict in lifetime disqualification case"},"content":{"rendered":"<p><\/p>\n<div dir=\"auto\">\n<p>The Supreme Court (SC) on Friday reserved its verdict on a set of petitions seeking to determine whether the disqualification period for a lawmaker was for five years or a lifetime.<\/p>\n<p>\u201cWe will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon God willing,\u201d Chief Justice of Pakistan (CJP) Qazi Faez Isa remarked at the conclusion of the hearing.<\/p>\n<p>A seven-member larger bench, headed by the CJP and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, conducted yet another marathon hearing in the case. The proceedings were broadcast live on the apex court\u2019s website.<\/p>\n<figure class=\"media  w-full  w-full  media--stretch  media--embed  \">\n<p><div class=\"ast-oembed-container \" style=\"height: 100%;\"><iframe title=\"\ud83d\udd34 \ud835\udc0b\ud835\udc08\ud835\udc15\ud835\udc04: CJP Isa-led SC Bench Resumes Hearing Lifetime Disqualification Case | Dawn News English\" width=\"500\" height=\"281\" src=\"https:\/\/www.youtube.com\/embed\/kSLCxa6QUhE?feature=oembed\" frameborder=\"0\" allow=\"accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share\" referrerpolicy=\"strict-origin-when-cross-origin\" allowfullscreen><\/iframe><\/div>\n<\/p>\n<\/figure>\n<p>The SC is seeking to determine once and for all the raging debate on whether aspirants disqualified under Article 62(1)(f) of the Constitution could contest polls in light of the <a href=\"https:\/\/www.dawn.com\/news\/1361268\">amendments in the Elections Act 2017<\/a>.<\/p>\n<p>The law is the same provision under which former prime minister <a href=\"https:\/\/www.dawn.com\/news\/1369175\">Nawaz Sharif<\/a> and Istehkam-i-Pakistan Party Chairman Jahangir Tareen were disqualified.<\/p>\n<p>The legal conundrum arose in view of a <a href=\"https:\/\/www.dawn.com\/news\/1401362\">2018 SC judgment<\/a> in the Samiullah Baloch case, when the apex court ruled that disqualification handed down under Article 62(1)(f) was supposed to be \u201cpermanent\u201d. 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.<\/p>\n<p>However, in June 2023, an amendment was brought in the Elections Act 2017, specifying that the period of the electoral disqualification will be for five years, not for life.<\/p>\n<p>The dilemma <a href=\"https:\/\/www.dawn.com\/news\/1797161\">cropped up<\/a> 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.<\/p>\n<p>At the previous hearing, Justice Isa had <a href=\"https:\/\/www.dawn.com\/news\/1803326\/cjp-isa-regrets-disqualification-clauses-thrust-on-parliament\">regretted<\/a> that constitutional amendments dealing with the disqualification of lawmakers under Article 62(1)(f) were thrust upon parliament under peculiar circumstances, without any debate.<\/p>\n<p>\u201cI have repeatedly emphasised that there is a need to understand the broader picture and the way such amendments in the Constitution were brought in,\u201d 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. \u201cThus, these provisions were made fait accompli,\u201d he had said.<\/p>\n<h2><a id=\"the-hearing\" href=\"#the-hearing\" class=\"heading-permalink\" aria-hidden=\"true\" title=\"Permalink\"\/>The hearing<\/h2>\n<p>As the proceedings commenced today, the bench summoned Advocate Makhdoom Ali Khan, the lawyer of Jahangir Khan Tareen, to come to the rostrum.<\/p>\n<p>The lawyer stated that the Samiullah Baloch case made a \u201ccomplete disconnect\u201d between Article 62 and Article 63 of the Constitution, which talk about the disqualification of lawmakers.<\/p>\n<p>\u201cIt 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,\u201d he contended.<\/p>\n<p>Makhdoom maintained that the SC, in the said case, was not talking about a declaration made under the penal laws of the country.<\/p>\n<p>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.<\/p>\n<p>For his part, Makhdoom said: \u201c[\u2026] 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.\u201d<\/p>\n<p>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. \u201cThere is no civil court in this country which can grant that,\u201d he contended, adding that judges usually grant declarations on a legal title or legal character.<\/p>\n<p>Here, Justice Mandokhail asked if a civil court could issue a declaration of disqualification. The lawyer replied in the negative.<\/p>\n<p>Meanwhile, Justice Shah asked: \u201cCan 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?\u201d<\/p>\n<p>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.<\/p>\n<p>\u201cArticle 62 applies pre-election, post-election or any time?\u201d Justice Mazhar inquired, to which the lawyer replied Article 63 applied at any time while Article 62 applied only at the time of elections.<\/p>\n<p>Here, the CJP interjected that the court had \u201cbummed down in restricting ourselves to reading just a particular provision of the Constitution and we seem to have forgotten the Constitution as a whole\u201d.<\/p>\n<p>\u201cWhat is the Constitution all about? What does it do? What are the fundamental rights?\u201d the top judge asked, lamenting that the constitutional history of Pakistan was being disregarded.<\/p>\n<p>\u201cWe 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,\u201d Justice Isa remarked.<\/p>\n<p>He recalled that there was \u201csuccessive encroachment\u201d made into the Constitution throughout history. \u201cDisregard how it came into the Constitution, now you are stuck with the language of the Constitution,\u201d the apex court judge said, stressing that he could not forget the history of Pakistan.<\/p>\n<p>\u201cWe had given public notice in newspapers but not a single political party came before us that this is a good interpretation of the Constitution,\u201d CJP Isa noted. He highlighted that there must be some logic and reasoning behind lifetime disqualification, saying that a person who \u201cdestroyed Pakistan\u201d was allowed to contest elections but others were disqualified for life just for some errors in the nomination papers.<\/p>\n<p>\u201cHave we lost all logic and sensibilities?\u201d the chief justice asked. \u201cWill 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 [\u2026] 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.\u201d<\/p>\n<p>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: \u201cThe Parliament in the 18th Amendment did not mention that the declaration will remain forever.\u201d<\/p>\n<p>An election tribunal, the lawyer continued, had four declarations which included dismissing a petition and even declaring the election void as a whole. \u201cFor offences under the Elections Act, the session judge tries them,\u201d he explained, adding that the Pakistan Penal Code also had a chapter on election offences and where punishments were prescribed.<\/p>\n<p>\u201cWhen your lordship looks at corrupt and illegal practices, the maximum punishment of illegal practices does not exceed two years. Only for the corrupt practice, the [punishment] can go beyond two years,\u201d he explained, submitting that the \u201cbusiness of civil law declaration\u201d had been introduced by the apex court which stripped the fundamental rights of an individual forever.<\/p>\n<p>At one point during the hearing, the CJP reiterated that everything should be logical. \u201cWe are not philosophers. This document is not for lawyers, it is for the people of Pakistan. Please explain to the people of Pakistan why a National Accountability Bureau convict will get a 10-year disqualification.\u201d<\/p>\n<p>\u201cThe Constitution is for the people of Pakistan. Don\u2019t make it difficult,\u201d the top judge stressed.<\/p>\n<p>For his part, Makhdoom said the current situation was more a \u201cproduct of legal imagination than legal reality\u201d, suggesting that the bench should neither strike down nor uphold the Samiullah case judgment and \u201cleave it for another day\u201d.<\/p>\n<p>\u201cWait for the issue to mature,\u201d he added, adding that the life-long ban was brought by the court. The lawyer further stated that the Samiullah case judgment talked about the doctrine of repentance but didn\u2019t deal with it. \u201cA declaration which is the result of a final determination will remain in the field till such time that it is undone by the court.\u201d<\/p>\n<p>In the context of elections, Makhdoom continued, no court had the power to do that, not an ordinary civil court nor the election tribunal.<\/p>\n<p>\u201cYou want us to hold that we overrule Samiullah Baloch and stop, nothing more?\u201d the CJP asked, to which the lawyer replied in the affirmative.<\/p>\n<p>\u201cBut all of Pakistan is happy with the law because no one has come forward [to challenge it],\u201d the top judge remarked, referring to the provision of five-year disqualification.<\/p>\n<p>Here, Makhdoom reiterated that the Samiullah case should be overruled because it reads into Article 62(1)(f), \u201cdeclaration of a civil nature, which for the life of the declaration, disqualifies a person and strips him of his fundamental rights under Article 17 of the Constitution\u201d.<\/p>\n<p>The court, he continued, talked about the doctrine of <em>tauba<\/em> (repentance) but said the declaration would remain in the field until removed. However, it did not identify a forum or law under which the declaration could ever be undone. \u201cMy respectful submission is that neither such a law nor doctrine exists,\u201d he added.<\/p>\n<p>Makhdoom further highlighted Article 175 of the Constitution, which says no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. \u201cSo no civil court will have a jurisdiction that is not given to it by the Constitution or the law.\u201d<\/p>\n<p>At that, Justice Shah inquired if there was material which talked about the importance of elections which allowed a convict to \u201ccome back into the ring again\u201d. The lawyer said he would look into it.<\/p>\n<p>Makhdoom also highlighted several cases, including those of Imran Khan, Faisal Vawda and others, where the author judge of the Samiullah Baloch case slowly moved away from the rigours of the said case. \u201cTherefore that shows there was a judicial realisation,\u201d he concluded.<\/p>\n<p>As Makhdoom wrapped up his arguments, the CJP asked the lawyer to submit a brief document on his submissions. He also asked if any court had revived or removed the ban, to which the lawyer said there was no such case.<\/p>\n<p>Subsequently, the hearing was adjourned for a prayer break.<\/p>\n<p>When the proceedings resumed, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum. He said that the Samiullah Baloch case had left the question of what would be a court of law for Article 62(1)(f) unattended.<\/p>\n<p>He referred to former CJP Asif Saeed Khosa\u2019s note in the Ishaq Khakwani case, which stated that whether a person was sagacious or not depended upon the comprehensive study of his mind which was not possible within the scope of election authorities or courts involved in election disputes.<\/p>\n<p>As Awan provided details of the jurisdiction conferred to courts by the Constitution, the CJP asked why the AGP did not mention the Federal Shariat Court as it had the \u201cexclusive domain\u201d of determining Islamic matters.<\/p>\n<p>\u201cWhy is that court not the appropriate court then? It deals with Islam,\u201d the judge pointed out.<\/p>\n<p>Justice Aminuddin also inquired if the matter had gone to the Federal Shariat Court, to which Awan replied in the negative.<\/p>\n<p>At one point, Justice Hilali asked what offences came under moral turpitude. In his response, the AGP said the Samiullah case provided the definitions of moral turpitude but said whatever the judgment had come up with was not correct.<\/p>\n<p>On the question of the interface between Articles 62 and 63, Awan said the SC had said in a previous case that Article 62 applies at the pre-election stage while Article 63 applies at both pre and post-election stage.<\/p>\n<p>Here, Justice Isa said he did not disagree with Justice Khosa\u2019s note.<\/p>\n<p>Meanwhile, AGP Awan said the SC had to first determine what courts should it be, civil or criminal, that would give the declaration for the purpose of Article 62(1)(f), the procedure adopted for the declaration, the standard of proof required and the locus standi (the right or capacity to bring an action or to appear in a court).<\/p>\n<p>However, the CJP said that in the light of Justice Khosa\u2019s note, \u201cmaybe these are just rhetorical questions\u201d. \u201cNonetheless, Parliament has understood Article 62(1)(f) better than us and has formulated something. Good for you Parliament, they represent the people of Pakistan,\u201d he remarked.<\/p>\n<p>The CJP also observed that Parliament had limited the time period of disqualification to five years. \u201cWe can\u2019t tell Parliament to craft a law this way [..] This is their job, our job is another job. Is it unconstitutional?\u201d<\/p>\n<p>He said that \u201csomeone has applied their minds and made a law\u201d which specifically mentioned all judgements of any court. \u201cSo that law has shown us respect\u201d by limiting the time period, he said.<\/p>\n<p>For his part, AGP Awan said 62(1)(f) had two components, one of which was the cause for disqualification which was declaration by a court of law. He said this resulted in a constitutional consequence, which was disqualification.<\/p>\n<p>\u201cNow what Parliament has done, it has placed placed a limitation on the cause, the declaration. The consequence stays where it is,\u201d he argued, saying in this case it was five years.<\/p>\n<p>He further said that without the amendments to the Elections Act and if the Samiullah Baloch decision was overturned, the \u201cconsequence\u201d would only be for that particular election.<\/p>\n<p>After hearing all the arguments, the court reserved its verdict in the case. \u201cWe will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon God willing.\u201d<\/p>\n<hr\/>\n<p><em>More to follow<\/em><\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>The Supreme Court (SC) on Friday reserved its verdict on a set of petitions seeking to determine whether the disqualification period for a lawmaker was for five years or a lifetime. \u201cWe will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon God [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":44124,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"fifu_image_url":"https:\/\/i.dawn.com\/large\/2024\/01\/05135336d533526.png?r=135351","fifu_image_alt":"","footnotes":""},"categories":[192],"tags":[],"class_list":["post-44123","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-islamabad-news"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/44123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/comments?post=44123"}],"version-history":[{"count":0,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/44123\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media\/44124"}],"wp:attachment":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media?parent=44123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/categories?post=44123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/tags?post=44123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}