Pakistan: Military dictators set conditions for eligibility of parliamentarians – Top Court


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