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Lawmakers disqualified under Article 62 should appear in court, become part of the case: SC

Updated January 30, 2018

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Jahangir Tareen talking to the media before SC hearing.—DawnNews
Jahangir Tareen talking to the media before SC hearing.—DawnNews

The Supreme Court (SC) on Tuesday heard a case regarding the interpretation of Article 62(1)(f) of the Constitution, with a view to ascertaining the period of disqualification of a member of parliament.

A five-judge SC bench consisting of Chief Justice Mian Saqib Nisar, Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Sajjad Ali Shah has taken up a set of 17 appeals against the disqualification of lawmakers.

During the hearing, the CJP said that those who appeared in court could become a party to the case but if any of the lawmakers affected by Article 62 failed to show up, then the court will issue a "one-sided" verdict.

"A one-sided ruling is also based on merit," he remarked.

The apex court had issued notices to former prime minister Nawaz Sharif and former Pakistan Tehreek-i-Insaf (PTI) secretary general Jahangir Tareen to appear in person or through their counsel during the hearing of the appeals involving the interpretation of Article 62(1)(f) — the provision under which both had been disqualified.

Tareen was present in court for the hearing but the PML-N head was not, as he was attending an accountability court hearing on the corruption references against him.

Advocate Babar Awan, representing a petitioner Samiullah Baloch, suggested that the court issue a public notice for lawmakers affected by the article to appear in court for the case's hearings. Another option, he said, was to issue a notice to the attorney general.

"The decision on this case will affect the entire nation," said Awan.

To this, the chief justice replied that the court wants to protect the rights of the people. "We want everyone affected [by the article] to come to court and become part of the case — this is why we issued notices to Nawaz Sharif and Jahangir Tareen so that they have no complaints afterwards," he said.

"Whether they come or not [for the proceedings] is up to them," Justice Nisar added.

The SC made a public announcement in this regard, inviting lawmakers disqualified under Article 62(1)(f) to become a party to the case by appearing in court for the hearing.

Interpretation of sadiq and ameen debated

Contemplating the article's interpretation and implementation, the CJP asked whether sadiq (truthful) and ameen (righteous) should be considered as one trait or two separate ones. Justice Ata questioned whether the article should be applied to lawmakers representing non-Muslim minorities.

"A parliamentarian from a [non-Muslim] minority should also possess good character," Awan insisted.

Justice Nisar said that a lawmaker could be disqualified for two reasons: for violating a law or for violating the Constitution. Awan argued that a parliamentarian's membership could also be nullified for a lack of character.

Responding to Awan's argument, Justice Saeed said that the right to determine whether a candidate qualified for an assembly seat rested with the returning officers (RO). However, both Awan and the bench agreed that the Constitution did not provide any criteria to determine whether a candidate's character makes them eligible to contest for an assembly seat.

The Constitution also did not specify whether a lawmaker could be disqualified for holding views that oppose the ideology of Pakistan, the court noted, though Awan insisted that they should be disqualified.

Also read: Qualification for candidates — a Constitutional puzzle

Justice Ijaz, however, pointed out that the 18th Amendment included the terms of a parliamentarian's disqualification.

Awan urged the court to also take the recent Hudaibiya reference verdict by the SC into consideration because it "negated the law". The SC recently ruled against an appeal to reopen the Hudaibiya Mills reference, noting that it was long past its expiry date and was being dragged in different courts to pressurise the Sharif family.

Debating the period of disqualification, Awan said that that the bar council does not renew the license of a judge who is expelled for misconduct.

"Be clear about what you are implying," the CJP told him. "Should a Parliamentarian be disqualified for life or for one term?"

He then wondered whether it was legally allowed to interpret the Constitution according to one's own understanding.

Discussing the applicability of Article 62 of the Constitution, Awan lamented that the parliament had never thought of amending the article. Justice Nisar suggested that the assembly might not have thought of it because the members agreed upon the article.

The bench then told Awan that the court was only debating the time-period of a lawmaker's disqualification.

Quoting a Quranic verse, Awan claimed that the disqualification as a result of Article 62(1)(f) should apply for life. The chief justice then asked any other lawyer present in the court who supported Awan's interpretation to stand up but no one did.

"Do you also oppose lifetime disqualification?" Justice Nisar asked Tareen's counsel, who confirmed that he did not support lifetime disqualification.

'Don't compare me to Nawaz'

Talking to the media before his appearance in court, Tareen said he should not be compared with former prime minister Nawaz Sharif since the latter could not provide a money trail.

He said that the Article 62(1)(f) of the Constitution is extremely "vast" and is open to interpretation in order to ensure that everyone sentenced under the said article does not get similar punishments since the severity of charges can differ.

The Supreme Court had disqualified Nawaz Sharif from holding public office in a landmark decision on the Panama Papers case in July 2017. The judgement had brought Sharif's third term in power to an unceremonious end, roughly one year before the scheduled general elections which would have seen him become the first Pakistani prime minister to complete a full five-year term.

Also last year, in December, the apex court had handed down its judgement in the Imran Khan, Jahangir Tareen disqualification case. Rejecting PML-N leader Hanif Abbasi's petition for Khan's disqualification, the court had, however, disqualified Tareen for being "dishonest".

'Sadiq and ameen'

Political and legal experts believe that the outcome of the case will have a great impact on the country’s future politics as it will decide the political future and fate of a number of politicians, including Sharif and Tareen.

Article 62(1)(f) says: "A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless [...] he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law."

The article, however, does not specify any period after which a person, who is declared disqualified under Article 62, can be eligible to contest elections of the parliament.

The court’s verdict will help end the controversy once and for all over the quantum of punishment by answering whether the disqualification of lawmakers should be for life or a specific time.

Advocate Iftikhar Jilani urged the court to end life-time disqualification, saying: "According to Article 62(1)(f), there shouldn't be life-time disqualification. This clause wasn't in the original draft of the Constitution. This clause was added after martial law."

At this, Justice Ijaz-ul-Ahsan remarked: "You want us to do what the parliament doesn't want to itself."

"If the parliament hasn't made the amendment then the Constitution reigns supreme," the chief justice added.

Iftikhar said that the SC saying "there is no time limit to disqualification under Article 62(1)(f) is pointless."

He reminded the court that the concept of forgiveness exists in Islam, to which Justice Ijaz-ul-Ahsan said: "[Only ] Allah forgives!"

The advocate responded: "You cannot go above and beyond Allah."

Tariq Mahmood, Samina Khawar Hayat's counsel, told the court that the case pertains to educational information, payments and asset details.

Justice Ijaz-ul-Ahsan asked Mahmood if he were implying that "falsification of statements does not account to dishonesty."

"Falsification in nomination papers is indeed a crime," he stressed.

The court's proceedings were adjourned until January 31.