Seven-judge bench hears petitions on lifetime disqualification n Had Quaid-e-Azam contested elections he would have been disqualified due to BA condition, says Chief Justice Qazi Faez Isa n Justice Mansoor notes in murder, terrorism cases disqualification period is five years but telling lies in nomination paper leads to lifetime ban.
ISLAMABAD – The Supreme Court of Pakistan Tuesday decided to conclude proceedings on lifetime disqualification to avoid any confusion for returning officers (ROs).
A seven-member bench of the SC headed by Chief Justice Qazi Faez Isa and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali conducted hearing of various petitions regarding discrepancy between the Supreme Court judgment on lifetime disqualification under Article 62(1)(f) of the constitution and the amendment made in Election Act, 2017. The proceeding was live broadcast on the Supreme Court’s website.
During the hearing, Justice Isa asked from Makhdoom Ali Khan, who represented Jahangir Tareen, Patron-in-Chief of Istehkam-e-Pakistan Party (IPP), to provide the list of the petitioners and the respondents in this case. He said that there are many individuals who have filed the petitions, but an impression has been created in the social media that a seven-member bench was hearing the case for any specific party/politician. The CJP said that they wanted to decide the case by January 11.
Attorney General for Pakistan (AGP) Mansoor Usman Awan, Advocate Generals of all the provinces and Islamabad Capital Territory (ICT), and the counsels of the respondents and the applicants support the AGP contention that there should not be lifetime disqualification of lawmakers. Therefore, the Chief Justice said: “We want to hear better contrary articulate views on lifelong disqualification, with the level of seriousness.”
Makhdoom informed that Articles 62 and 63 were inserted in the Constitution through Presidential Order in 1985, during the regime of General Zia ul Haq, and validated by the Parliament. “We should not always criticise the Parliament, but we have to see that sometimes they have to operate in odd times,” said the Chief Justice adding that the validation was a bitter pill for the Parliament, which it swallowed to put the country back to democracy. He said that the General had told the Parliament if you would not do this (validate) then he would continue as Chief Martial Law Administrator. The CJP remarked that the person who had violated and destroyed the Constitution, had put conditions for the eligibility of the parliamentarians in the constitution. The court noted that he (Zia-ul-Haq) inserted the words good character, Islamic teaching, and non-profligate, righteous in Article 62 and 63. The CJP inquired from Makhdoom that he (Gen Zia) was not non-profligate. Makhdoom replied; “These are the matters of Divine judgment.” Justice Mansoor questioned that why the Parliament in 18th Amendment did not stamp out these Articles (62 & 63) from the constitution?
The Attorney General informed that in 18th Amendment the words ‘declaration by Court of law’ were inserted in Article 62(1)(f) to avoid confusion at the end of the Returning Officers (ROs), as before that the RO were disqualifying candidates under Article 62(1)(f). The court noted that another military dictator introduced BA condition for contesting elections. The Chief Justice remarked that had Quaid-e-Azam contested elections he would have been disqualified due to BA condition. Makhdoom argued that the SC judgment in Samiullah Baloch is not in accord with the constitution. It is not good judgment, and since there is lacuna in it, therefore a five-year disqualification period was provided through an amendment in Section 232 of Election Act, 2017.
However, Justice Mansoor questioned how the subordinate legislation can control the constitutional provisions. He said that in murder, working against the integrity of Pakistan and terrorism cases the disqualification period is five years, but if someone tells lies in his nomination paper then the sentence is that he cannot contest election in the whole life.
Makhdoom informed that the author of SC judgment in Samiullah case is the author of judgment delivered in the case of Faisal Vawda, adding that the judge rendered a different opinion in Vawda’s case and disqualified him for one term for submitting a false affidavit in a dual nationality case. The then Chief Justice (Umar Ata Bandial) in his judgment wrote: “If Faisal Vawda admits and regrets that he misstated before the Islamabad High Court about his dual nationality and before the Supreme Court he relied upon his cancelled passport to show that had renounced the US nationality well before. If he does this then will be disqualified under Article 63(1)(c), but if he contests his case then he could be disqualified under Article 62(1)(f) of the Constitution.”
Onset of the hearing, the Attorney General argued that if the Samiullah judgment is examined then one will find many contradictions in it. He told that the amendments in Section 232 of the Election Act had not been challenged so far. Later, the bench deferred the haring of the case till January 4 for further proceedings.__The Nation
