Disqualification for life against Islam: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa on Thursday observed that the lifetime disqualification is against the teachings of Islam.

A seven-member larger bench of the apex court headed Justice Isa and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarat Hilali heard the matter of lifetime disqualification of parliamentarians.

The proceedings of the matter that were broadcasted live on the apex court’s website and YouTube channel adjourned until today (Friday ) at 9: 30am At the start of hearing, the CJP said that advocates Uzair Bandari, Faisal Siddiqui and Reeema Omar have been appointed as amici curiae for assisting the court on the constitutional matter.

Khuram Raza, counsel for the appellant Sajjadul Hassan, Usman, counsel for another appellant, Uzair Bandari and Faisal Siddiqui argued before the court.

During the course of hearing, Justice Isa said that they were seeking clarity on whether the period of disqualification for the members of Parliament was five years as per the recent amendment made in the Election Act 2107 or other articles of the Constitution, prescribing the criteria for contesting elections.

CJP Isa said that the solution to this matter is present in Islam. “The Holy Quran mentions that the status of humans is very high,” the top judge said, referring to a verse from Surah ‘Sajda’ which explains that human beings are not bad but their deeds are.

“Disqualifying anyone [for life] is against Islam,” he added. The top judge said that Article 62(1)(F) calls human beings bad but lifetime disqualification closes the door to repentance. He said that a person can be forgiven if he repents.

“How can the court close the door to repentance if the God didn’t,” CJP Isa remarked. The CJP questioned as to why we should assume someone is a liar unless he is proven to be a liar.

“No matter how much you despise the members of the Assembly, they are our representatives,” he remarked. “You cannot give precedence to the wisdom of dictators over the wisdom of assembly members,” he added.

Commencing his arguments, Khuram Raza raised the question of maintainability and jurisdiction of the apex court of conducting the proceedings.

“Whether this court is exercising the power under Article 187 or Article 184(3) of the Constitution while hearing these appeals,” the counsel questioned.

The chief justice asked the counsel to stick to his basic submissions, adding that under Article 199 the high courts have jurisdiction while Article 184(3) of the Constitution gives a power to the Supreme Court.

“Now the question is does Article 62(1(f) give any power to the Supreme Court?” Justice Isa observed.

The chief Justice said that the lifetime disqualification decision was taken as per one’s thinking, not on law and the Constitution, adding that the decisions are based on logic, and not on one’s mood.

He added that damage is done when decisions are taken on discretionary powers, adding that no one can be allowed to use his free will in this regard. “This cannot happen that you can qualify or disqualify as you wish,” he added.

Khuram Raza submitted that the Supreme Court hears the case against the decision of the tribunal under the appellate jurisdiction.

The CJP asked if 62(1(f) empowers the tribunal to disqualify for life or only this power of lifelong disqualification rests with the Supreme Court.

The counsel contended that Article 62(1(f) declaration was the authority of the Election Tribunal, adding that the article mentioned the court of law, not the Supreme Court.

“True, but does 62(1(f) also empower the tribunal to disqualify for life or whether this power of lifelong disqualification directly rests with the Supreme Court? the chief justice asked.

The CJP said that the Supreme Court and high courts are constitutional courts where constitutional petitions are filed, adding that the Election Commission exercises powers under the law.

“If the Election Commission can disqualify for life, then the power will also lie with the Supreme Court, he said.

Justice Mansoor observed that judicial declaration is given on the basis of some law and that law now says this period will be five years.

Khuram Raza submitted that Article 62(1(f) was silent on the period of disqualification, adding that Parliament had recognised it in the parliamentary debate.

Whether these disqualification clauses were added by a dictator, true or false, the chief justice asked the counsel, adding as to whether we accept dictatorship again.

He said that the amendments to the Constitution were imposed on Parliament.

“A dictator came, another came, a third came and threw them all away,” the CJP remarked, adding that Parliament made a law book and gave it to us.

Justice Isa asked as to why didn’t the dictators make a fair and honest condition for themselves, adding that some people said, ‘come on, even a half-democracy is better than a dictatorship’. He said that the amendments were also brought at gunpoint.

He remarked that the Constitution would be sanctified only when we obey it and questioned as to how can the wisdom of the five judges sitting here be more than the people sitting together in Parliament?

He said that the life term of disqualification under Article 62(1(f) was given by the Supreme Court in the Samiullah Baloch case, who was disqualified for not having a graduate degree in an election.

The law has come and the disqualification has been for five years, so how will the issue of lifetime stay? the chief justice said, adding that the principle of repentance and returning to the straight path is in Islam. Lifelong disqualification is against the teachings of Islam.

He said that General Ayub came and threw everyone out and brought his own laws.

“Why didn’t the dictators set the conditions of Sadiq and Amin for themselves?” the CJP asked, adding that it was not the case that Gen Ziaul Haq or his law minister could not find English language word for Ameen but it was added under an intention. He said that in Islam ‘Munafiq’ is a bigger criminal than ‘Kafir’.

The counsel submitted that constitutional amendment is required to end lifetime disqualification, adding that through an ordinary legislation Parliament cannot amend the Constitution.

He further submitted that the only court of declaration is the Election Tribunal.

Justice Mandokhail asked the counsel as to whether Article 62 is dependent on Article 63. The counsel replied in negative.

Meanwhile, advocate Sabzwari, counsel for another appellant, adopted the argument of Khuraam Raza but contended his client was disqualified by the RO for fake degree.

The CJP told the counsel that they were not taking individual cases. Likewise, Usman advocate told the court that unless Samiullah Baloch’s case was not interpreted no amendment could be made to Article 62(1(f).

“What is the distinction between Sadiq and Ameen,” Justice Hilali asked the counsel to which he replied Sadiq and Ameen also applied to non-Muslims and stated that the conditions were not in reference to Islam.

At this the chief justice wondered if these conditions were inserted to create “confusion” and asked if non-Muslims cannot be Sadiq and Ameen.

Justice Mandokhail then asked who was responsible for determining if one was good or not.

The counsel replied that only Allah can be the judge. Usman submitted that the five-member bench that heard the Samiullah Baloch case had incorporated the citation of Allahdino Bahaio case regarding lifetime disqualification the grounds of Sadiq and Ameen; however, in the review petition, it set it aside.

“This case has opened the door for Parliament to make legislation on Article 62(1(f),” Justice Isa remarked. Justice Mansoor observed that declaration of court is in law but not in the Constitution, and the law has been recently introduced fixing the period of five years for disqualification.

“How could lifetime disqualification be applicable today when a law had been introduced fixing the period for five years,” Justice Mansoor questioned. Uzair Bhandari amicus curiae, while commencing his arguments, submitted that the problem of Samiullah Baloch’s case was that it did not settled the mechanism for the lifetime disqualification.

He contended that the returning officers had two reference points, one was the amended Elections Act and the other was the Sammiullah case judgement, and they were liable to enforce the higher of both reference points.

The amicus curiae submitted that Article 63 imposed a disqualification but did not specify a timeframe. He submitted that subsequent to the 18th Constitutional Amendment, there were number of amendments made but it too did not chose to determine period of disqualification.

What Samiullah Baloch had done, it had linked the disqualification to a declaration of the court. “As long as this decree continues, the lifetime disqualification will remain there,” the amicus curiae argued.

He cited para 6 of the Samiullah judgement wherein it was held that if the repentance is attracted then the matter of disqualification come to an end. He further said that Samiullah Baloch case did talk about the repentance but it did not decide it.

“Should it be revisited, visit it, but withholding Samiullah case,” Bhandari submitted.

Faisal Siddiqui, another amicus curiae, while arguing before the court, submitted that the apex court had defined the period of disqualification but the mechanism to define this period was not right.

He submitted that the in the presence of court’s decision regarding lifetime disqualification, amendment to the Election Act was meaningless, adding that the impact of court’s verdict could not be removed through a simple piece of legislation.

He further submitted that until and unless the verdict regarding lifetime disqualification was not reversed, the five years period for disqualification given in the amendment made to the Election Act would be unconstitutional.

He submitted that the Supreme Court had set lifetime disqualification on the basis of court’s declaration and it was necessary that court’s declaration would be considered forever.

“This court is to examine as to whether the amendment made to the Election Act 2017 on the intention to abolish the Samiullah’s judgement or not,” Siddiqui submitted

He further submitted that if the amendment to Election Act was to be maintain the Samilullah Baloch judgement would have to be struck down.

“Would it not better that the matter be left for Parliament,” Justice Mansoor asked the amicus curiae. Siddiqui, however, contended that things should be looked into on constitutional perspective, adding that all should be done within the parameters of the Constitution. Later the court adjourned the hearing for today (Friday).