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ISLAMABAD: Justice Qazi Faez Isa, one of the members of a three-judge Supreme Court bench that decided an election dispute in favour of Sheikh Rashid Ahmed on Wednesday, stressed the need for dispelling an impression that different persons were treated differently by the judiciary.

“Justice must not only be done but be seen to be done too,” Justice Isa wrote in his additional note, saying that the eligibility of members of parliament should be decided in accordance with one single and definite measure.

Justice Isa, however, enumerated seven questions in his note and requested Chief Justice Mian Saqib Nisar to constitute a full court comprising all judges of the apex court to deliberate on them before deciding the appeal of Malik Shakeel Awan who had challenged the 2013 election of Sheikh Rashid for making misdeclaration in his nomination papers.

Judge poses seven questions in Sheikh Rashid case and asks CJP to constitute full court to deliberate on them

In his note, Justice Isa explained that he had asked for the full court since every judge of the Supreme Court had heard election disputes and acquired invaluable knowledge which would undoubtedly better help decide the questions of law he had framed.

The questions are: Does every non-disclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?

If a petition does not disclose the particular on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?

Does Article 225 of the Constitution, which relates to election disputes, exclude the application of Article 184(3) of the Constitution to election disputes? If the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a fundamental right, and if so, can it be determined under Article 184(3) of the Constitution?

And if the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the Representation of Peoples Act 1976 (RoPA) are the same as those governing petitions under Article 184(3) of the Constitution?

Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)?

And finally if a candidate is disqualified on account of non-disclosure or misdeclaration, does such disqualification subsist only till the next elections or is it permanent?

In his note, Justice Isa said that when divergent views were expressed by different benches of the same number of judges of this court, the matter needed early resolution and all the more so when, “any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts of Pakistan”.

In the Panama Papers case, Justice Isa said, Article 62(1)(f) of the Constitution, which provides that an adverse declaration with regard to a person’s sagacity, righteousness, profligacy, honesty and whether or not he/she is ameen, must be declared by a court of law, was expounded to mean a court of “plenary” or “competent” jurisdiction which suggests the exclusion of the Supreme Court when exercising its extraordinary original jurisdiction under Article 184(3) of the Constitution.

The question, therefore, arises whether a person can be disqualified under Article 62(1)(f) of the Constitution by this court in exercise of its jurisdiction under Article 184(3) of the Constitution? Any confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ nomination forms, Justice Isa added.

Published in Dawn, June 14th, 2018

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