Apex Court to take up lifetime disqualification issue in January 2024
Court issues notices to the AGP Barrister Mansoor Usman Awan, provincial advocate generals & ECP
Court says political parties could also become party in the case
CJP Qazi Faez Isa says the present case will not be used as pretext to delay elections by ECP or anyone else
Justice Athar Minallah remarks that there is no uncertainly regarding elections in country & if anyone says this, it is the contempt of the apex court
ISLAMABAD ( Web News )
The Supreme Court of Pakistan on Monday decided to take up the issue of lifetime disqualification of lawmakers in January 2024 and referred the matter for further consideration to the judges’ committee. The committee will decide whether five, six, seven or more judges’ larger bench should be constituted for hearing this urgent matter due to upcoming polls going to be held on 8th February next year.
The apex court took notice of contradictions regarding the duration of disqualification in section 232(2) of the Election Act, 2017 and a Supreme Court verdict during the hearing of the petitions filed against petition filed by former Pakistan Muslim League-Nawaz (PML-N) provincial lawmaker Sardar Meer Badshah Khan Qaisrani and Fazal Mehmood and others by Sardar Confcius Imam Qasrani and Mumtaz Ahmad Maharvi through Muhammad Saqib Jillani and Sheikh Usman Karim-ud-Din Advocates. Mir Badshah Qaisrani was represented by
Khalid Ibn-i-Aziz Advocate. Additional Attorney General Punjab Balighuz Zaman and DG Law Election Commission of Pakistan Muhammad Arshad appeared before the bench on court notice.
While issuing notices to the Attorney General for Pakistan Barrister Mansoor Usman Awan and provincial advocate generals, the apex court also ordered the notice of the case to be published in the country’s two major English and Urdu newspapers. The court has also directed the court staff to issue fresh notice to ECP along with order of case. The court also said that the political parties could also become party in the case.
A three-member bench comprising Chief Justice of Pakistan Justice Qazi Faez Isa, Justice Aminuddin Khan and Justice Athar Minallah heard the case.
Mir Badshah Khan Qaisrani had challenged his lifetime disqualification over a fake degree in 2013.
Meanwhile Chief Justice Qazi Faez Isa has said that the present case will not be used as pretext to delay elections by ECP or anyone else. Justice Athar Minallah remarked that there is no uncertainly regarding elections in the country and if anyone says this, it is the contempt of the apex court.
During the hearing, the Panama case related to lifelong disqualification and amendments to the Election Act also came under discussion.
The top court said that three appeals pertaining to the disqualification, of national and provincial assemblies have been filed in the court in relation to the 2008 and 2018 general elections.
It noted that the petitioner was disqualified for life and was handed a two-year jail sentence over holding a fake degree — his appeal against lifetime disqualification is pending in the Lahore High Court (LHC) Multan bench.
“What is the federal government’s take on lifetime disqualification?” Chief Justice Qazi Faiz Isa asked the additional attorney general to which the latter responded: “The federal [government’s] opinion is that Section 232 is beyond the court’s verdict.”
Justice Athar Minallah said that the present case is related to the 2018 elections. “How is this a live issue now that the new elections are on the horizon?” he remarked. The judge added that the current elections will be affected by this case.
The petitioner’s lawyer Muhammad Saqib Jilani said that the current case will have an impact on the upcoming elections as well.
Chief Justice Isa asked the lawyer why Qaisrani was disqualified.
“Mir Badshah Khan Qaisrani was disqualified in 2013 based on a fake degree. But the high court allowed him to contest the 2018 elections,” the counsel replied.
Qaisrani’s counsel said his client, in the 2018 general elections, submitted nomination papers based on matriculation; but the high court allowed him to contest the elections.
The PML-N politician, the lawyer said, was disqualified under Article 62(1)(f) and could not contest the elections.
“If the Supreme Court does not decide, he will contest the next elections despite his disqualification,” the lawyer said.
The counsel told the court that an appeal against Qaisrani’s sentence is pending in the high court. “The Supreme Court should order the high court to decide on the appeal.”
CJP Isa told the lawyer that the SC could not order the high court. “We are not sitting as monitoring judges on the high court. We will decide on the constitutional issue and not on the appeal pending in the high court.”
The chief justice remarked that the Constitution doesn’t mention anything regarding the period of disqualification under Article 62(1) (f).
CJP Isa said the Supreme Court has three opinions on lifelong disqualification. He further asked if there was a severe penalty like lifetime disqualification in cases related to the National Accountability Bureau (NAB), then how long would it be in case of a murder.
“Is there a new law on lifetime disqualification and Article 62(1) (f)?” CJP Isa asked.
The petitioner’s lawyer said the Election Act 2017 was recently amended to increase the maximum period of disqualification to five years.
By amending the Election Act, Parliament can nullify the Supreme Court’s decision, said Justice Athar Minallah. “By adding Section 232 to the Election Act, Supreme Court’s decision on Article 62(1) (f) has become ineffective.”
CJP Isa remarked that the SC’s lifetime disqualification decision and the Election Act cannot go together. He added that either the amendments in the Election Act or the apex court’s verdict would have to be upheld.
He remarked if the duration of disqualification for a crime like high treason is five years, then why is there lifetime disqualification for those who don’t pray or tell lies.
“After the Supreme Court Practice and Procedure Act is made, a bench of at least five judges should be formed on this constitutional interpretation,” CJP Isa said.
The chief justice said that no one has challenged the amendments to the Election Act. “When the amendments to the Election Act are not challenged, the other party will rely on it.”
By adding Article 232(2) to the Election Act 2017, the concept of lifelong disqualification has been eliminated, he said, adding that the “elections are upon us”.
He added that the returning officer, election tribunal and the courts will be in a quandary whether to rely on the Election Act or the SC judgment.
“The Election Act will apply to the current elections. After the inclusion of Section 232, all judgments related to lifelong disqualification became invalid,” Justice Minallah said.
Stressing that it will only address the question pertaining to lifetime disqualification, the court highlighted that according to the petitioner’s lawyer, Qaisrani’s disqualification is for life whereas Section 232 of the Election Act provisions for five-year disqualification.
At this, the attorney general contended that the aforesaid section of the Election Act is to be “beyond the SC verdict regarding lifetime disqualification”.
During the hearing, the attorney general maintained that the said issue pertains to constitutional interpretation and therefore must be addressed by a larger bench.
At this, the court forwarded the matter to the judges’ committee regarding the forming of the bench on the issue of lifetime disqualification. The court has also directed the lawyers of both applicants to assist in the matter when the case will be heard by the larger bench.