The Supreme Court on Friday reserved its verdict on the lifetime disqualification of lawmakers under Article 62(1)(f) of the Constitution after all arguments were completed, with Chief Justice of Pakistan (CJP) Qazi Faez Isa saying a short order will be announced shortly.
A seven-member larger bench—headed by the CJP and comprising Justices Syed Mansoor Ali Shah, Yahya Afridi, Aminuddin Khan, Jamal Khan Mandokhel, Muhammad Ali Mazhar, and Musarrat Hilali—conducted the hearing, which was broadcast live on the Supreme Court’s official website.
The case pertains to contradictions arising out of Parliament amending the Election Act, 2017, fixing the period of disqualification at 5 years, against earlier rulings of the apex court fixing lifetime disqualification of lawmakers under Article 62(1)(f).
In Friday’s proceedings, the CJP said the apex court would not take up individual cases related to elections and disqualification, but would only hear matters related to constitutional interpretation. After this, Jahangir Tareen’s lawyer Makhdoom Ali Khan commenced arguments.
Arguing that the declaration of disqualification would come from the civil court, Khan was questioned by Justice Mazhar whether Article 62(1)(f) could be implemented before or after elections. “The candidate is disqualified pre-elections if we read Articles 62 and 62 together,” replied Khan.
At this, the CJP questioned why the arguments were limited to “one specific part” of the Constitution and not constitutional history and fundamental rights. “Do not limit yourself and as a constitutional expert, explain to us in a broader context,” he told the lawyer, who then urged the bench to overturn the Samiullah Baloch case verdict wherein the top court held that the disqualification period under Article 62(1)(F) will be for life.
“Does any other country have such a stringent test for parliamentarians? Are our politicos different from the politicians of the world?” questioned the CJP, observing lifetime disqualification should have some “logic” behind it.
At this point, Justice Mandokhail questioned if a lawmaker convicted for fraud could contest polls after completing their sentence. Khan said polls can be contested after completion of a sentence, noting it was two years for corrupt practices. Justice Hilali then inquired about the legitimacy of a verdict if society considered a person honest even after a court declared them dishonest.
“Can the court suspend Section 232 of the Election Act?” wondered Justice Mazhar, with Khan saying it would require a petition, after which the court could take a decision on it. He also said that only a high court could give a declaration under Article 199.
Justice Shah then wondered if amendments to the Constitution could arise through sub-constitutional legislation. The CJP said amendments could be made through legislation. He then remarked that he cannot give a declaration on a politician’s character.
“But what will happen to the constitutional provisions related to the character?” questioned Justice Shah, with the CJP saying the “framers of the 1973 Constitution were wiser.” Regretting that some people had made additions to the Constitution aimed at disqualifying anyone they disagreed with, he observed that if the Constitution was silent on a matter, there must be a valid reason for it.
“When I say I don’t want to make a decision on something, that is also a decision,” he said, adding Parliament could decide if it wished to make amendments.
In his arguments in favor the amended Elections Act, Attorney General for Pakistan Mansoor Usman Awan said the court of law was not declared in the Samiullah Baloch judgment, adding it was also discussed in the Ishaq Khakwani case in 2015 by a seven-member larger bench of the apex court.
Supreme Court must declare that who can give declaration against politicians, he stressed. “Samiullah Baloch judgment is not correct. It discussed something that was left open by the Constitution,” said the AGP, noting the judgement took away the shield given to politicians by the Constitution.
The CJP wondered how the determination of the seven-judge bench in the 2015 case was not binding upon the five-judge bench that decided the Samiullah Baloch case. He said he could not disagree with what Justice Khosa explained in the Khakwani judgement, adding the amended Elections Act 2017 suggested Parliament understood the questions to determine disqualification better than the court.
Justice Isa, referring to Section 232(2) of the Elections Act, wondered: “Can’t we live with the determination by Parliament, which has set the disqualification of the lawmakers for five years.”
Justice Shah, however, observed the Elections Act had also ignored the Khakwani judgement since the amendment to the law has not suggested any procedure to determine the lawmakers’ disqualification. CJP Isa suggested Parliament might address this in the future. He said the role of the court is not to fill in the blanks but rather examine legislation to determine whether it was made in accordance with the law and Constitution. “I may not agree with the legislation, but I have to keep quiet as a judge,” he said.