Lifetime disqualification should have some logic: CJP

ISLAMABAD: Chief Justice of Pakistan Qazi Faez Isa remarked on the question related to the lifetime disqualification of politicians, stating that if the Election Commission of Pakistan can disqualify politicians for life, then the Supreme Court will also have the power.

Will the Alection Act determine the disqualification of politicians, or will it be the decision of the Supreme Court? The hearing of the case to interpret Article 62(1)(f) of the Constitution in the Supreme Court is ongoing in the Supreme Court.

A seven-member larger bench, headed by Chief Justice Qazi Faez Isa, are hearing the case related to the disqualification of politicians under Article 62(1)(f). Justices Mansoor Ali Shah, Yahya Afridi, Aminuddin Khan, Jamal Mandukhel, Muhammad Ali Mazhar, and Musrat Hilali are also part of the larger bench.

Petitioner Fayaz Ahmad Ghauri and Sajjadul Hasan’s lawyer, Khurram Raza, questioned the jurisdiction, asking under which jurisdiction the Supreme Court is hearing the case. The Chief Justice of Pakistan advised Raza to confine himself to his plea.

In response, Khurram Raza argued that the authority to give the declaration of Article 62(1)(f) belongs to the election tribunal, as the court of law is mentioned in Article 62(1)(f), not the Supreme Court. He emphasized that Article 62 talks about a court of law.

Justice Qazi Faez Isa pointed out that Article 99 gives power to the high court, and Article 184(3) gives power to the Supreme Court. The key question is whether Article 62(1)(f) grants any power to the Supreme Court.

Khurram Raza raised concerns about the lack of a specified disqualification period in Article 62(1)(f) and.

The petitioner’s lawyer argued that the Supreme Court hears cases against the tribunal’s decisions under appellate jurisdiction. The chief justice acknowledged this but questioned whether Article 62(1)(f) grants the tribunal the power to impose a lifelong disqualification or if that power is directly with the Supreme Court.

The chief justice emphasized the distinction between constitutional courts and civil courts, noting that the election commission and the Supreme Court both have powers, as specified by the law.

Regarding the concept of a lifelong disqualification, Justice Mansoor Ali Shah argued that a person making a false statement in nomination papers may not be barred for life. He referred to the Representation of the People Act, to which the chief justice responded, highlighting potential contradictions.

SC to establish committee to address lifetime disqualification

The petitioner’s lawyer suggested that the Supreme Court can grant a declaration in cases where evidence has been recorded. The chief justice questioned whether this aligns with the Samiullah Baloch case, to which the lawyer responded in partial support.

The chief justice warned against bringing Islam into the case, emphasizing the need to differentiate between constitutional courts and civil courts. Justice Mansoor Ali Shah questioned the strange scenario where criminals can contest elections again, unlike those with civil faults.

Justice Qazi Faez Isa expressed disagreement with the distinction between educational qualifications and eligibility for elections. Khurram Raza emphasized that the court should only interpret Article 62(1)(f).

The chief justice raised concerns about maintaining a lifelong disqualification and questioned the lawyer about supporting dictators, who introduced such laws. The petitioner’s lawyer argued that a person disqualified once will always be disqualified.

The chief justice highlighted his father’s disqualification in the Ayub era and questioned the ratification of clauses in Article 62(1)(f) in the eighteenth amendment. He raised concerns about the wisdom of five individuals nullifying the legislation of 326 MPs.

As the argument continued, the chief justice emphasized the need for logic in decisions, particularly in the context of lifetime disqualification. He cautioned against spreading confusion and filing cases in different courts, which could create obstacles in elections.

Justice Jamal Khan Mandukhel questioned whether the Parliament could legislate, to which Khurram Raza explained the roles of Parliament and the court in legislation and interpretation. The chief justice suggested that decisions should have some logical basis.

On the arguments of lawyer Asghar Sabzwari, the chief justice remarked on the need for logic in giving lifetime disqualification. He questioned why lifetime disqualification is imposed for just lying and emphasized the importance of a logical basis for such decisions.

The argument revolved around the interpretation of Article 62(1)(f), the powers of the election commission and Supreme Court, the concept of lifelong disqualification, and the need for logical reasoning in decisions related to disqualification.

Justice Mansoor questioned if the law has been enacted for a disqualification period of five years, how will the concept of a lifelong ban be justified?.

Justice Jamal Mandukhel raised a query: Can the tribunal disqualify someone beyond the scope of Article 63? Justice Mansoor Shah argued that while the law determines the period of disqualification, a lifetime ban was upheld under Article 62(1)(f), empowering the court of law to declare it. He questioned how a lifelong ban could be maintained when the law prescribes a five-year disqualification.

The petitioner’s lawyer asserted that once disqualified, a person will always remain disqualified. In response, the chief justice told him of supporting dictators who enacted laws to disqualify politicians. He emphasized the difference between a hypocrite and a disbeliever, stating that a hypocrite knowingly does wrong.

The chief justice shared a personal experience, mentioning his father’s disqualification during the Ayub era, and questioned why Article 225 wasn’t discussed. Khurram Raza argued that the clauses in Article 62(1)(f) were ratified in the 18th amendment. Chief Justice Qazi Faez Isa questioned the legitimacy of Article 62(1)(f), highlighting concerns about amendments made under duress.

The CJP suggested that if the decision stated the disqualification period is not fixed, confusion could arise. He emphasized the need for logic in decisions.

Justice Faez Isa questioned the assumption of someone being a liar without proof. The petitioner’s lawyer argued that a two-year disqualification is not specified in the constitution. Chief Justice Qazi Faez Isa countered that even a lifetime disqualification is not explicitly stated.

Justice Muhammad Ali Mazhar mentioned that no one has challenged the Election Act amendment. The petitioner’s lawyer clarified that it was challenged in the Lahore High Court.

Justice Jamal Mandukhel questioned whether Parliament’s interpretation is less than the court’s. Khurram Raza explained that Parliament legislates, while the court interprets. The chief justice pondered on assuming someone is a liar until proven guilty.

In the Jahangir Tareen case, Lawyer Faisal Sabzwari called for an inquiry, stating that a lifetime disqualification without trial is unjust. Sabzwari argued that lifetime disqualification was added by a dictator, and cases like Jahangir Tareen’s should be investigated.

The chief justice questioned the logic behind a lifetime disqualification for lying, emphasizing the need for reasoning.

The chief justice remarked on advocate Ariz Bhandari’s arguments, stating, “Ariz Sahib, we had hoped for constitutional assistance from you, which you did not provide. No one mentioned Article 17; no one explained why disqualification is imposed merely for lying. There must be some logic to giving disqualification.”

Justice Qazi Faez Isa commented on the constitutional amendments, noting, “The dictator said to make this amendment, or else I will sit for 25 years. It is oppression to run the whole country at the will of one person. The government then said, ‘You go, and we will make the amendment.’ What will happen if a person repents?”

The chief justice remarked that those who took the entire country hostage are contesting elections again. He questioned why lawyers hesitate taking names of dictators, whether there is any law or not, or we just kill the bees?”

After the break, at the beginning of the hearing, Judicial Assistant Aziz Bhandari stated that when Parliament was undertaking the eighteenth amendment, Article 62(1)(f) was not touched. Parliament was aware that there is an interpretation of Article 62(1)(f), and some aspects of the Samiullah Baloch case need to be revisited.

The Chief Justice asked him to explain his point. Aziz Bhandari said he was not discussing the mechanism of disqualification in the Samiullah Baloch case; even after the eighteenth amendment, several constitutional amendments were made, but no mention of Article 62(1)(f) was made in any constitutional amendment.

The Chief Justice remarked that an entire country was put on hold due to a change in a form; perhaps, that’s why this matter was left aside. The state might have thought, “Who would deal with these people?”

Aziz Bhandari said it’s like the saying, “What would have happened if it had happened?” Under Article 62(1)(f), sentences of disqualification for life have been given.

Justice Mansoor Ali Shah asked whether the punishment of disqualification for life was given before or after the eighteenth amendment. Aziz Bhandari said the punishment of disqualification for life was imposed in 2007, before the eighteenth amendment.

The Chief Justice stated that Article 63 mentions penalties, but Article 62(1)(f) does not. Aziz Bhandari argued that the courts have determined the punishment under Article 62(1)(f), and Parliament has never attempted to change the language of Articles 62 and 63.

The chief justice said that once on the language of an oath changes, the entire country came to a standstill; perhaps that’s why this matter was left aside. The state might have thought, “Who would deal with these people?”

Aziz Bhandari remarked that it’s like the saying, “What would have happened if it had happened?” The decision in the case of Samiullah Baloch can be concluded without resorting to disqualification for life; yesterday, it was stated in this court that Article 62(1)(f) and 63 should be read together, and this point was discussed in detail in the case of Samiullah Baloch.

The chief justice said that you should come to your original point today; otherwise, Lahore cannot be reached. Judicial Assistant Aziz Bhandari said that I will attempt to complete the argument in 20 minutes.

The Chief Justice stated that the basis of the decision of disqualification for life should be some logic. Lawyer Aziz Bhandari said that when Parliament was undertaking the eighteenth amendment, Article 62(1)(f) was not touched. Parliament was aware that there is an interpretation of Article 62(1)(f), and some aspects of the Samiullah Baloch case need to be revisited.

The Chief Justice engaged in a conversation with Aziz Bhandari, asking him to explain his point. Aziz Bhandari said he was not discussing the mechanism of disqualification in the Samiullah Baloch case; even after the eighteenth amendment, several constitutional amendments were made, but no mention of Article 62(1)(f) was made in any constitutional amendment.

Aziz Bhandari said that nomination papers are submitted to the Returning Officer, who cannot declare disqualification; the Election Tribunal can declare disqualification based on admitted facts. The Supreme Court’s decision does not write who can declare disqualification; it is not written in the Supreme Court’s judgment.

The Chief Justice inquired how any court can declare someone to be truthful and honest. How can the courts determine the qualities of honesty, integrity, and non-extravagance? In the case of disqualification, the Supreme Court has decided everything.

Justice Mansoor Ali Shah stated that the Constitution allows the Supreme Court to make such declarations. The Chief Justice of Pakistan remarked that in a military or espionage case, a witness may lie, and questioned whether disqualification can be based on such grounds.

Judicial Assistant Aziz Bhandari mentioned that Article 10A talks about a transparent trial. The Returning Officer cannot issue a declaration; the Returning Officer is not a court; the Election Tribunal can issue a declaration based on admitted facts.

The Chief Justice of Pakistan remarked that Aziz Bhandari seems to be contradicting his own arguments. One judge might say there is disqualification, while another might argue there is no disqualification. Justice Mansoor Ali Shah said that the real question is where the declaration will come from.

The Chief Justice of Pakistan said that in the case of forgery, who will issue the declaration? Some words are such that they mean nothing beyond a clash of documents.

Aziz Bhandari said, “I am a judicial assistant; don’t ask ‘cross’ questions.” The judges smiled at the response of Judicial Assistant Aziz Bhandari, and they said, “If you insist, I will retract my questions. The Supreme Court can also issue a declaration based on admitted facts, and so can a trial court.”

Chief Justice Pakistan said, “We need to make things easier, not difficult. We want ease for the Returning Officer, not difficulty. Just tell us whether the disqualification will be for life or five years. You have made the Returning Officer a court of law.”

Justice Jamal Mandokhail asked, “If someone qualifies and becomes a member and later turns bad, how can we remove them? Article 63, which deals with disqualification, does not mention Article 62. In such a situation, a warrant will be issued.”

Chief Justice said, “Bhandari Sahib, I don’t understand your point.” To which he replied, “I apologize again. Where will the declaration come from? If this is not the question, then let it go.”

Justice Yahya Afridi said, “Present your arguments in order.” Chief Justice said, “We want to hear you, but we also need to conclude the case. We have to write our order.”

Justice Jamal Mandokhail asked, “If someone qualifies and becomes a member and later turns bad, how can we remove them? Article 63, which deals with disqualification, does not mention Article 62.”

Aziz Bhandari said, “In such a situation, a warrant will be issued.” Chief Justice said, “Bhandari Sahib, I don’t understand your point.” To which he replied, “I apologize again. Where will the declaration come from? If this is not the question, then let it go.”

Justice Yahya Afridi said, “Present your arguments in order.” Chief Justice said, “We want to hear you, but we also need to conclude the case. We have to write our order.”

Aziz Bhandari said, “A declaration can also be given in the quarantine. In Khawaja Asif’s case, such a quarantine was given. The High Court can record the statements of witnesses in quarantine.”

Chief Justice said, “We understand your point. Tell us the next point. How can someone who lies become disqualified and someone who commits perjury be disqualified for five years? No one is paying attention to this point. Parliament did not make these amendments willingly; they were imposed on them.”

Aziz Bhandari said, “The 18th Amendment was not imposed by anyone.” Chief Justice said, “Those who are contesting elections across Pakistan are creating chaos again. Where did all these things come from in the Constitution? No one is telling. Not even a lawyer speaks against the dictator. The dictator says, ‘Make these amendments, or I’ll sit for 25 years.’ Parliament agrees to remove the dictator.”

Chief Justice said, “We are talking in the air. Answer one question. Can someone go to court again after a declaration comes? Can someone say now I repent, declare me as a good Muslim?”

Justice Mansoor Ali Shah said, “Is there any such decision where such a decision has been given?” Aziz Bhandari said, “I have seen such a decision in the Faisal Vawda case.” Chief Justice said, “Giving the most discussion to someone is very dangerous. I expected that you would provide legal assistance. It is not possible for Faisal Vawda to feel regret and declare him fit when the matter is in judicial mode. When the court is in the mood to hear, then it can declare disqualification. It doesn’t happen that if someone feels regret, the matter will be dropped. We are talking in the air. Answer one question.”

Chief Justice inquired, “Can someone go to court again after a declaration comes? Can someone say now I repent, declare me as a good Muslim?”

Justice Mansoor Ali Shah raised the question, “Is there any such decision where such a decision has been given?” Aziz Bhandari said, “I have seen such a decision in the Faisal Vawda case.” Chief Justice remarked, “Giving the most discussion to someone is very dangerous. I expected that you would provide legal assistance.”

The chief justice said, “It cannot be that Faisal Vawda shows remorse, and the matter goes into a judicial mode. When the court is in the mood to hear, then it can declare disqualification. It doesn’t happen that if someone feels regret, the matter will be dropped. We are talking in the air. Answer one question.”

Aziz Bhandari said, “I criticized the 18th Amendment as much as I criticized the dictator. The chief justice said, “It is easy to criticize others in Parliament. Aziz Bhandari said, “I cannot fight with those who have guns. I can ask those whom I voted for. I am saying that a declaration can be filed with the suit. It’s up to you to accept it or not.”

Aziz Bhandari referred to Justice Mansoor Ali Shah’s previous decision, to which Justice Mansoor Ali Shah, smiling, inquired, “Why are you behind me today?”

Chief Justice said, “These things in the Constitution, the way they came, where they came from, people and Parliament did not think and understand before legislating. Have these things been imposed on them?”

He said that the tuning of 62/1(F) was done forcibly. Compulsorily, the will of one person became prevalent across Pakistan. Have those who made Pakistan submissive sought forgiveness from anyone?

Justice Qazi Faez Isa said that these things came during the era of martial law and dictators but nothing against dictatorship comes out of the mouth of a lawyer.

Aziz Bhandari said that I cannot fight with those who have guns.

Justice Jamal Khan Mandokhail asked if the Supreme Court, in the light of the decision in the Faisal Vawda case, can give an honest and trustworthy declaration to anyone?

Justice Musarat Hilali asked if there is a standard for a judge that gives an honest and trustworthy declaration to someone. Does the judge himself adhere to the standard that he sets for someone else to give an honest and trustworthy declaration?

After that, a break for Asr prayer was taken during the hearing.

After the break, when the hearing resumed, court assistant Faisal Siddiqui, providing reasons, said, “I will focus on the points that are before the court, and I will discuss the duration of disqualification.”

He stated that the case of Samiullah Baloch only talks about the duration, and Samiullah Baloch, disqualified, supports the decision to end the disqualification.

He mentioned that the amendments made in the Election Act need to be examined, and behind the amendments in the Election Act, there is the intention to override the case of Samiullah Baloch. The amendment in the Election Act is futile in the presence of the decision of disqualification.

He said that the impact of the court decision cannot be eliminated by simple legislation; taking back the decision of disqualification without five years of disqualification would be unconstitutional.

Faisal Siddiqui further stated that the Supreme Court needs to withdraw the decision of disqualification. The Supreme Court had given disqualification based on the judicial declaration, and it is not necessary that the judicial declaration of disqualification is permanent. The declaration can end, and the period of disqualification can also end after the declaration ends.

Chief Justice Justice Faez Isa stated that “the solution to all matters is present in Islam. The Holy Quran mentions that the status of a human is very high. A person is not inherently evil, but their actions can be. Disqualifying some for life is against Islam. Article 62(1)(f) is calling a person bad. If a person repents for their sins, they can be forgiven.”

Background

It should be noted that the court has issued notices to the parties, including the Attorney General and other counsels, appeared before the court for the hearing scheduled for January 2.

Chief Justice Faez Isa earlier remarked that the court will require the services of assistants on this matter. We cannot control the media or social media. From the current case, it should not be inferred that the court is supporting any specific group. It is a constitutional issue that we are going to resolve once and for all.

The chief justice had further remarked that efforts will be made to complete the hearing on January 4. After consultation, the court assistants can also be appointed. Subsequently, the hearing was adjourned until January 4 (today).”

It should be noted that during the hearing of the disqualification case of Mir Badshah Khan Qaisrani on December 11, Chief Justice of Pakistan had remarked that the Supreme Court’s decision on disqualification and amendments in the Election Act cannot proceed simultaneously.

Chief Justice Faez Isa and Justice Atar Minallah, constituting the larger bench, had directed the formation of a judges’ committee to refer the matter of determining the period of disqualification to the larger bench. They had stated that the next hearing of the case would take place in January 2024.

It is noteworthy here that legal experts suggest that if the disqualification is declared under the Election Act instead of Article 62(1)(f) of the Constitution, then Nawaz Sharif and Jehangir Tareen may become eligible to contest elections.

According to legal experts, Article 62(1)(f) of the Constitution does not specify the duration of disqualification. However, in the past, the Supreme Court had interpreted it to mean disqualification for life.

The Supreme Court adjourned the hearing until 9 am Friady (tomorrow) morning.