ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa observed that he will rely on laws enacted by elected representatives and would not consider legislation enacted during the tenure of a military ruler.
The CJP made these remarks during a hearing of a lifetime disqualification case — that will determine whether lawmakers’ ineligibility to contest polls should be for a lifetime or five years under the amended Election Act 2017 in line with Article 62 (1)(F).
The other members of the bench include Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar and Justice Musarat Hilali.
The hearing of the case was broadcast live on SC's website and YouTube channel and adjourned till January 4 (Thursday).
On December 11, 2023, the chief justice while heading a three-member bench hearing a matter related to the disqualification of a former PML-N provincial lawmaker Sardar Meer Badshah Khan Qaisrani last month, took notice of the contradiction between its judgment and the legislation made through an amendment to the Election Act pertaining to the lifetime disqualification.
The chief justice had observed that the Supreme Court’s judgment on lifetime disqualification and the amendments made to the Election Act 2017 could not exist simultaneously.
He further said either the legislation enacted by parliament to the Elections Act or the judgment delivered by the Supreme Court will prevail.
The court had referred the matter to a three-member committee, constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 that takes the decision on fixation of cases before the apex court benches.
An apex court judgment in the year 2018 had held that any person disqualified under Article 62(1)(f) of the Constitution would be lifetime.
Former prime minister Nawaz Sharif and then Pakistan Tehreek-e-Insaf (PTI) leader Jahangir Tareen were disqualified by the Supreme Court under Article 62(1)(f) of the Constitution in 2017.
The court had ruled that Nawaz had been dishonest to the parliament and the courts, and thus, he could not be deemed fit for his office.
Later, an accountability court awarded him 10-year imprisonment in the Avenfield apartments and seven years in Al-Azizia references.
However, the Islamabad High Court acquitted him in both cases after the former premier returned to the country.
In 2023, the coalition government of PDM made an amendment to the Elections Act 2017, decreasing the legislator’s disqualification to five years retrospectively.
The matter is of immense importance as the general elections are being held on February 8, while the Election Commission of Pakistan has rejected the nomination papers of most of the main aspiring candidates of PTI including its founder Imran Khan.
The electoral body, however, has accepted the nomination papers of most of the PML-N candidates including its supremo Nawaz which invited criticism from PTI leaders on the role of the commission.
At the outset of the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan implored the bench to review its decision regarding the lifetime disqualification.
At this, CJP Isa asked the AGP as to what in his opinion should prevail — the amended Election Act 2017 or the Supreme Court’s verdict on lifetime disqualification.
The AGP said he would support the Election Act 2017 as it was enacted by the federal government.
However, the AGP said the declaration of lifetime disqualification will remain effective unless the Supreme Court's verdict remains in place.
Justice Shah wondered whether it was possible to amend the Constitution via simple legislation or whether a constitutional amendment was required.
Justice Mazhar said the limit of disqualification is not fixed in Article 62 (1)(F).
A person convicted of murder and treason could contest elections after a ban of some years, said Justice Shah asking if it is not inappropriate to disqualify someone for life over a "petty reason".
After Tareen's lawyer Makhdom Ali Khan informed the court that Article 62 was added to the Constitution via presidential order in 1985, CJP Isa wondered whether a person who removed judges and violated the Constitution, be of good character.
CJP Isa said, in his opinion, the original Constitution should be relied upon if there is any contradiction between a Constitution and the amendments made to the Constitution later.
"I will rely on the legislation [enacted] by elected representatives and not on the one done by the dictator," he observed.
Adjourning today's hearing, CJP Isa said the Supreme Court will try to conclude the case proceedings on the lifetime disqualification case on January 4 (Thursday).
During the hearing of the case, CJP Isa asked Attorney General for Pakistan (AGP) Mansoor Usman Awan to explain the difference between Articles 62 and 63.
To which, the AGP said Article 62 deals with the eligibility of parliamentarians while 63 is related to disqualification.
The CJP observed that the sub-clauses of Article 62 that deal with the public office holder’s character created difficulty.
“How can the character of any person be determined? Is the attorney general a person of good character?” the CJP remarked saying that he asked the question related to AGP as an example.
The CJP said supporters will say a person in question is of high character, while his opponents would describe his character as worst.
CJP Isa observed according to Islamic standards, no one can be declared a person of high character.
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