Debarring someone from office was equivalent to condemning them for life: CJP Faez Isa
Says disqualifying anyone for life from parliament is ‘against Islam’
ISLAMABAD ( Web News )
Chief Justice of Pakistan (CJP) Qaiz Faez Isa on Thursday that debarring someone from office was equivalent to condemning them for life. Chief Justice remarked that disqualifying anyone for life from parliament is “against Islam”.
Chief justice made the remarks as the Supreme Court heard a set of petitions seeking to determine whether the disqualification period for a lawmaker was for five years or a lifetime under Article 62-1(f).
A seven-member larger bench, headed by the CJP and comprising Justice Justice Syed Mansoor Ali Shah, Justice Yahya Khan Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, conducted the six hour-long marathon proceedings that were broadcast live of the apex court’s website.
Attorney General for Pakistan (AGP) Mansoor Usman Awan and lawyers Uzair Karamat Bhandari and Faisal Siddiqui, who have been appointed as amici also appeared before the court. However Reema Umar did not appear personally but submitted the written suggestions regarding the matter.
During the hearing, the top judge said that the court was seeking “clarity” on whether the disqualification period for a lawmaker was five years — as per the amendment in Election Act 2017 — or a lifetime ban under the aforementioned article which deals with the criteria to contest elections.
CJP Qazi Faez 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.
During the hearing, the chief justice also warned against spreading confusion related to elections, as the polls are being held on February 8. “Filing cases in different courts will create obstacles in the way of elections,” he noted.
Lawyer Barrister Khurram Raza who was representing petitioners Fayaz Ahmed Ghori and Sajjadul Hasan faced immense grilling by the seven-member bench — headed by the chief justice — for his defence of lifetime disqualification of parliamentarians.
At one point, CJP Isa observed that the counsel he was siding with “dictators”.
The lawyer argued that the constitutional amendment is needed to end lifelong disqualification.
At this, Justice Jamal Khan Mandokhail asked the lawyer whether the Parliament cannot legislate. “Parliament legislates but the Supreme Court interprets it,” Raza responded.
Advocate Khurram Raza raised questions about the maintainability of the proceedings. “Under what provision of law are these proceedings being conducted?” he asked. However, the bench directed Raza to stick to his petition.
Resuming his arguments, the counsel said that the election tribunal could only grant a declaration and that the right could not be exercised by the high court or SC directly. However, he continued, cases against orders passed by the tribunal could be heard by the apex court under the scope of appeal.
Here, the CJP said this debate won’t resolve the problem before the court. “Let us not go into the powers of the election tribunal. This is not the question of the election tribunal or election commission exercising a power, it is about a power exercised by a constitutional court,” he highlighted.
For his part, Raza said any declaration in the election tribunal or by the SC in the appellate jurisdiction was covered in Article 62(1)(f).
“Let’s clarify, the election tribunal will exercise powers only under the law […] therefore when the SC is exercising such powers it cannot have more powers than the election tribunal or the Election Commission of Pakistan,” Justice Isa said.
“Unless you can show that the ECP and the election tribunal can also disqualify for life, then that power will also be with the SC, otherwise it will be an additional power given to the Supreme Court under Article 62(1)(f),” he added.
For his part, Raza said the SC can give a declaration, pertaining to lifetime disqualification, only if “it had arisen out of the tribunal” but not on its own.
Meanwhile, the CJP said Article 63 of the Constitution talks about disqualification, but only for five years. “Where is that provision which says [a lawmaker] is disqualified for life? Where is the power in this court to do this? That is the essential question,” he stressed.
At one point, Justice Shah asked: “Does it not appear odd to you that for other crimes as big as treason, you could always come back and contest elections but for a civil wrong […] the punishment in a way is for life. But if I were to commit a murder, rape or kidnapping […] I could come back and contest elections.”
Raza replied that these arguments were present in Islamic principles. However, the CJP took exception to the contention.
“There were those who were violently opposed to Islam and then they became caliphs […] just don’t throw in Islam like that […] there is a principle of repentance and returning to the right path,” Justice Isa remarked.
The CJP also inquired if the provisions of disqualification were amended in the Constitution by a dictator, saying that a “hypocrite was worse than a non-believer”. He lamented that amendments were made on “gun points” and asked how the wisdom of five judges sitting in a court could be more than the people sitting in the Parliament.
“No matter how much you despise the members of the assembly, they are our representatives,” the top judge remarked. “You cannot give precedence to the wisdom of dictators over the wisdom of assembly members.”
Further, the CJP said the court wanted “clarity” in the run-up to elections and to prevent confusion for returning officers regarding the law they needed to follow.
Subsequently, Advocate Sheikh Usman Karimuddin came to the rostrum. He highlighted that the preconditions of saadiq and ameen were also applied to non-Muslims, arguing that hence these conditions were not in reference to Islam.
“Can non-Muslims not be saadiq and ameen?” Justice Isa asked. “Were these things inserted for confusion or what?”
Justice Mandokhail also inquired who was responsible for determining if the character of a person was good or not, to which the lawyer said only God could do it.
At one point, Usman Karimuddin said lifetime disqualification in the Samiullah Baloch case was a “judge-based law”. Meanwhile, Justice Shah wondered how could the lifetime disqualification still be applicable today when a law had been introduced and the disqualification period had been fixed at five years.
“Politicians are elected representatives of the people,” the CJP said, adding that dictators and politicians could not be judged together. “A dictator comes into government by breaking the constitution, not by being elected,” Justice Isa stated.
Subsequently, the court adjourned the proceedings for a break. When the hearing resumed, Bhandari, who was appointed amici to assist the SC in the case, was called to the rostrum.
Bhandari contended that the returning officers had two norms before them, the Elections Act amendment and the Sammiullah case judgment, and they had to enforce the higher of both norms.
“The way I see it, the starting point is the historical context for Article 62(1)(f),” he said, adding that the law entailed a lifetime disqualification, which was settled before the 18th Amendment. He highlighted that various provisions under Article 63 imposed a disqualification but did not lay down any time frame.
He said that in the 18th Amendment, the Parliament substituted Articles 62 and 63 in their entirety. “Secondly, Article 63(1)(g)(h)(i)(j) had time limits inserted in them and they ranged from two to five years. Probably that gradation is justified based on the severity of the wrong that they entail.
“The third thing that the Parliament did was that in Article 62(1)(f) they inserted these words ‘there being no declaration to the contrary by a court of law’. The fourth thing the Parliament did not do was insert a time limit in Article 62(1)(f),” Bhandari pointed out.
He also stated that as per his reading of the 2018 case judgment, he did not see it as laying down a permanent disqualification but it was an indefinite disqualification — which can come to an end. “The Samiullah case cannot be overruled but there are problems with it that can be fixed,” the lawyer added.
Bhandari further argued that the Parliament never even tried to change the language of Articles 62 and 63, at which the CJP said that the entire country was closed down once when the language of the oath was changed. “Maybe this is why they left it. The state must have thought who would deal with these people,” the top judge said.
For his part, Bhandari stated that the key to resolving the issue was in the Samiullah case judgment, which mentioned the concept of repentance. He highlighted that the returning officer could not issue the declaration of disqualification, while the election tribunal could do the same on the basis of established facts.
However, he continued, the SC 2018 judgment does not mention would can issue the declaration.
At that, CJP Isa remarked how a court could determine if someone was honest and truthful. “How can courts determine honesty, trustworthiness and non-wastefulness?” he asked, pointing out that the SC did everything in the lifetime disqualification case.
“Where is it written in the Constitution that the Supreme Court can give such a declaration?” Justice Shah further inquired.
“Let’s suppose a witness lies in a criminal or civil case, can he not be disqualified for this?” the CJP asked, while Justice Shah reiterated that the primary question was where the disqualification’s declaration would come from.
In his response, Bhandari said the SC or even a civil court could issue the declaration based on established facts. However, Justice Isa reiterated that the court wanted to bring clarity and make the life of ROs easy, not difficult.
Meanwhile, Justice Afridi asked Bhandari about his opinion on the need to have Article 62 in the presence of Article 63.
“They chose to do that because conceptually they relate to two different things; qualifications are positive attributes that some aspirants to the office must have. Disqualifications are attributed that he/she should not have […] if negative attributes are there it would take away the fitness or competence to hold the particular office,” Bhandari said.
The CJP asked if a person could approach a court after disqualification and say he had now repented. “So at the end of the day, you are saying it is all to do with our feelings. It is what we felt,” Justice Isa lamented.
“In my opinion, the most dangerous thing that leads you to destruction is when you give too much discretion to anyone, whether it is a judge or bureaucrats. When discretion is not structured, where there is no principle or guideline […] sorry to say, this does not make for sustainable law,” the top judge remarked.
Justice Isa also noted that people “who made Pakistan hostage” never repented. “All these things have come during the martial laws, but no one mentions this.”
In his defence, Bhandari said he criticised both military dictators and those who brought the 18th Amendment. However, the CJP intervened and said it was easy to criticise parliamentarians.
At one point, Justice Mandokhail asked if the apex court could declare any person saadiq and ameen in the Faisal Vawda case while Justice Hilal asked if there was a criterion that a judge needed to meet to declare someone honest and truthful.
In his arguments, lawyer Faisal Siddiqui — who was appointed the amicus curiae — focused on the issue of the time period of disqualification under Article 62(1)f.
Siddiqui contended that the verdict in the Samiullah Baloch case must be “overruled” because “it poses numerous problems as far as constitutional interpretation is concerned”.
The chief justice then wondered about the court’s need to overrule the verdict when the recent amendments to the Elections Act had already done so.
In response, Siddiqui said a statutory law could not overrule the constitutional interpretation of a decision by the apex court. Siddiqui further said that the Samiullah Baloch decision was also “very problematic in terms of democratic growth in the country”.
The lawyer argued that the use of the word “permanent” was what created issues in the Samiullah Baloch verdict since it made the period of disqualification permanent.
He said that constitutional absences or silences remained because they concerned “touchy issues” so the legislature did not want to take a particular position at a certain time, and wanted to leave the issue undetermined.
Siddiqui argued that when “constitutional silences” needed to be filled, it should be done considering that the legislature had no intention and any judicial interpretation was being taken on an issue on which there was no definitive answer.
Here, CJP Isa interjected and asked why a third consideration should not be made “when there is a constitutional absence, Constitution makers intentionally opened the field for legislation, not for constitutional interpretation which can be changed from time to time.”
Agreeing with the top judge, Siddiqui said: “That is why the constitutional implication which should be drawn from that absence should be such that it should be changeable in the future through statutory interpretation” or legislation.
He said another “obvious implication” of any absence was that any declaration by the court should apply to the next election.
The lawyer was also asked about the process of clearing an individual, who had already been declared a “fraudster”, for the next general election. Here, the chief justice remarked that a solution to this conundrum was found in Islam.
“No person is bad per se. A person’s acts are bad,” the top judge remarked.
“If you debar someone for life, you condemn that person for life. There is no redemption or forgiveness which Samiullah Baloch [decision] also touches upon but does not attend to it at all,” he observed.
The chief justice said forgiveness “comes from within” and therefore acts could be punished “for a particular period” but it did not mean a permanent condemnation.
“No person can be condemned. The door of mercy will remain open up there [in the heavens] and if a person changes their ways then only their past actions should be condemned instead of their personal self,” CJP Isa said.
He said the Samiullah Baloch case condemned “not the act but the person in perpetuity”. “Does it accord with Islamic injunctions?” he asked.
Siddiqui replied in the negative, adding that it did not accord with Articles 62 and 63 either. “All punishments in [Article] 63 are time bound,” he added. The hearing was later adjourned till 9am tomorrow.