ISLAMABAD: A senior counsel told the Supreme Court on Thursday that no political party was currently in a position to muster strength and remove any provision from the Constitution that had a slight link with Islamic injunctions.

“The situation in the country today is such that it is not easy to remove from the Constitution any clause driven from the Islamic concept because of religious extremism in our society,” argued Sardar Mohammad Aslam on behalf of Khan Mohammad Khan Jatoi who was also disqualified.

The counsel was arguing before a five-judge bench, headed by Chief Justice Mian Saqib Nisar, hearing a set of 17 appeals and review petitions to determine the length of the disqualification handed down under Article 62 (1)(f) of the Constitution.

But Justice Ijaz-ul-Ahsan, a member of the bench, reminded the counsel that a bipartisan committee of parliament had considered all provisions of the Constitution and decided to retain the conditions under Articles 62 and 63 while adopting the 18th Amendment.

Since the provisions were retained by parliament, it had to give purpose, the chief justice observed and wondered whether the counsel was alluding to the fact that people’s representatives were fearful and, therefore, they decided to retain these provisions.

Hearing of petitions seeking determination of length of disqualification continues

“I have seen the sit-in at the Faizabad intersection and the language they used and many other incidents like that,” the counsel said and, while citing Surah-i-Maida from the Holy Quran, recalled how Hazrat Umar Farooq had suspended the punishment of amputation of hands on allegations of theft at the time of famine.

“Instead of living in an idealistic world we should live in reality,” the counsel said, adding that he believed in the concept of repentance and, therefore, the court should fix some time period for the disqualification handed down under Article 62(1)(f) of the Constitution.

He said if a man who committed some crime and was later disqualified was not a matter between God and himself and should be forgiven for showing repentance rather he had committed offence with his electorate and society.

“Are you saying that the doctrine of necessity is available,” the chief justice said.

Justice Ahsan asked if the counsel was trying to say there was a moral famine in the country these days.

The chief justice observed that bona fide or mala fide of a person was a state of mind which could only be manifested with his conduct only.

Earlier, Barrister Syed Ali Zafar as amicus curiae argued that to answer whether a person had been declared to be not sagacious, not righteous, not non-profligate, not honest or not ameen had to answer by embarking upon the journey of discovering the silence of the Constitution.

According to him, this journey is extremely important because the answer to this question depends not just on former prime minister Nawaz Sharif and Jahangir Tareen, who had been disqualified by the Supreme Court on the basis of Article 62(1)(f), but the fate of many parliamentarians, present or future, was also at stake.

Relying on A.K. Brohi’s “Fundamental Law of Pakistan”, he stated that the Constitution set forth the principles of legal character of the state which included parliament and hence every word and the concepts of Articles 62 and 63 were important as they determined the legal character of one essential part of the state — a sovereign parliament.

The second principle relied upon by the amicus curiae was that the interpretation of the Constitution is very different from the interpretation of an ordinary law and, therefore, the methods and tools used by the courts for interpreting the Constitution are also potentially different, although similar in many respects because the Constitution was given by the people and is a living document.

The hearing was adjourned till next Wednesday.

Published in Dawn, February 2nd, 2018

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