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ISLAMABAD: Right activists Asma Jahangir asked the Supreme Court on Thursday to avoid hearing and interpreting cases involving political questions and leave these tricky matters to politicians to settle them in the coming days.

She said that even if the politicians failed to resolve these issues, the court should not lay its hands on them, wondering how the court could settle an issue which even the politicians failed to do so.

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

“How the Supreme Court will interpret the ideology of Pakistan whether on the basis of what our founding father Quaid-i-Azam Mohammad Ali Jinnah envisaged or by someone else,” the counsel argued while highlighting a lack of laws reflecting true import of the ideology of Pakistan.

Chief justice observes the rights activist’s perception about parliament like other institutions not being completely independent is not correct

Justice Umar Ata Bandial, a member of the bench, however, observed that courts resolved the issues on concrete, and not hypothetical, questions and asked whether Article 62 of the Constitution which spoke about the qualification of parliamentarians was substantive or subservient part of Article 63 which dealt with disqualification of the members of parliament. “The real question is how to harmonise the two articles,” he said.

“How the court will define the word ‘sagacious’ used in Article 62 and what will be the mode of trial to determine the same?” Ms Jahangir asked, adding that if the court came up with some guidelines, it would mean a controlled democracy which was not a good idea.

When Justice Ijaz-ul-Ahsan asked why the parliamentarians did not make changes in the articles when amendments were being introduced in the Constitution, the counsel said that like other institutions, parliament was also not completely independent and that was the reason that these articles were retained in the Constitution.

But the chief justice observed that her perception was not correct.

Ms Jahangir said that even the present parliament had adopted legislation for setting up the military courts because they had stakes, and recalled that she used to avoid attending protest meetings during the Zia martial law regime because of fear that it might be her last. “The fear still exists, though it has subsided considerably.”

Before Article 62, she said, the punishment for moral turpitude was five years and there were no cases of disqualification during the period between 1985 and 1999, adding that through the legal framework order, the Representation of Peoples Act (RoPA) was amended which stated that electorates also had a dignity and how the choice of these electorates could be shrunk.

When Justice Ahsan said the counsel wanted to say that courts should dilute the effect of these provisions which the parliamentarians themselves did not want to do, Ms Jahangir emphasised that “we have to walk together and there should be modest expectations of them. Both Articles 62 and 63 should be looked together”.

“You want to say that Article 62 is vague; then what are the ways to interpret the same,” the court asked.

The counsel said courts hardly had the tools to measure the term ‘sagacious’.

“But we have tools to measure honesty,” Justice Ahsan said, adding that people did not want to see their representatives dishonest.

“Will I be declared dishonest if I failed to return Rs2 which I borrowed?” she asked. She said that had she been in parliament, she would have protested and resigned when the condition of graduation was introduced for the parliamentarians.

At this, the chief justice asked if the counsel wanted to say that dishonest and mala fide were the frame of mind, adding that one could not be dishonest but for some people he might be dishonest.

Ms Jahangir argued that there should not be a constant period of disqualification, but courts should decide the question according to the conduct of individuals. In 2009, she said, the Supreme Court had held Nawaz Sharif eligible to contest the elections by holding him sadiq and ameen, but now it was difficult to understand whether the court had increased the bar of honesty or reduced it.

The case will be taken up on Monday.

Elections Act

A three-judge Supreme Court bench also headed by the chief justice observed that the court also had to consider whether a person sent behind bars on a criminal offence could control or regulate a political party from his confinement.

The bench was hearing challenges to the Elections Act, 2017, under which a disqualified person could become head of a political party.

The court reiterated that a person held guilty under Article 204 of the Constitution dealing with contempt of the court would also be held to be not loyal to the state as defined under Article 5 which commands loyalty to the state.

“Can a person be elected as head of a political party if he ridicules the judiciary and thus held not to be loyal to the state?” the court asked.

The observation came when Advocate Babar Awan, representing PTI chief Imran Khan, argued that the existing statute or the Elections Act should be struck down for being ultra vires of the Constitution.

He argued that the sub-legislation (elections act) could not circumvent the applicability of the constitutional provisions and that Section 203 of the Elections Act which empowered a disqualified person to become party head was offensive to the provisions of Article 227 and, therefore, should be set aside.

He alleged that the law had been brought to benefit certain class of individuals and, therefore, person-specific and untenable.

When the counsel cited the 2012 NRO judgment, the chief justice asked could the court strike down a law on the basis of a judgement or the observation of a judge than under criteria set out in the Constitution.

The court also asked the counsel to cite a judgement under which a law was struck down for being person-specific.

The chief justice also recalled the arguments of senior counsel Farogh Naseem who had referred to the constitution of the PML-N to establish how omnipotent the office was.

The counsel highlighted that every ticket to contest the elections on behalf of a political party was issued by its president under his signatures.

The case will be taken up on Friday.

Published in Dawn, February 9th, 2018