• CJP Isa describes article’s interpretation as ‘riddle wrapped in a mystery inside an enigma’
• AGP argues provision initially intended as ‘safety valve’ to prevent unfair rejections
• Tareen’s counsel says Samiullah Baloch case created disconnect between Articles 62, 63

ISLAMABAD: The Supreme Court on Friday reserved its verdict on a set of petitions on the contentious issue of lawmakers’ lifetime disqualification.

“We will try to come up with a shorter order as soon as possible. Probably not today but it will be very soon, God willing,” Chief Justice Qazi Faez Isa said as he concluded the hearing.

Justice Isa, invoking Winston Churchill’s 1939 speech, described the interpretation of Article 62(1f) of the constitution as a perplexing challenge, likening it to a “riddle wrapped in a mystery inside an enigma”.

The chief justice was heading a seven-judge Supreme Court bench that had taken up a set of 15 petitions to determine whether lifetime disqualification under Article 62(1f), as commanded earlier in the 2018 Samiullah Baloch case, will prevail or the 2023 amendments to the Elections Act 2017, which reduced the election ineligibility to five years only.

Earlier, in 2015, former chief justice Asif Saeed Khosa, who was part of a seven-judge Supreme Court bench and heard a similar controversy, said: “The vague, uncertain, obscure and conflicting terminology of Articles 62 and 63 in the Constitution that spells out qualifications and disqualifications among the parliamentarians is bound to confuse the electorate at large, hound the candidates and their voters and embarrass the returning officers at the time of scrutiny of nomination papers.”

Attorney General for Pakistan Mansoor Usman Awan argued that the Supreme Court’s interpretation in the 2018 Samiullah Baloch case was an overreach, not foreseen by the parliament when amending Article 62(1f). He suggested that the matter should be left to the parliament, especially with elections imminent.

He referred to a unanimous decision in the 2015 Ishaq Khakwani case, in which the seven-judge Supreme Court bench left the issue of disqualification undecided, whereas the 2018 Samiullah Baloch case also left open the question regarding the phrase “declaration by the court of law,” the declaration of which will lead to the disqualification of the lawmakers.

Mr Awan also cited the 2011 Mubashir Hassan case, in which the full court of the Supreme Court had held that Article 62(1f) was not a self-executory provision and emphasised that the violence done to the Constitution in 1985 through the Restoration of Constitution Order (RCO) by Gen Ziaul Haq had made the qualification of members under Article 62 a hotchpotch of ideas.

He said the apex court, while deciding the Samiullah Baloch case, overlooked the earlier judgement in the Ishaq Khakwani case.

At this, Chief Justice Isa wondered whether the determination by the seven-judge bench in the 2015 Ishaq Khakwani case was not binding upon the five-judge bench that decided the Samiullah Baloch case. He also wondered how the five-judge bench could disregard the larger bench’s judgement and why this bench should not acknowledge the Ishaq Khakwani decision.

Justice Isa said he couldn’t disagree with what Justice Khosa explained in the Khakwani judgement. While amending Section 232(2) of the Elections Act 2017, the parliament understood the questions to determine disqualification better than the court, he said, adding that the amendment was more tuned to Justice Khosa’s judgement.

The attorney general argued that Article 62(1f) was initially intended by the parliament as a “safety valve” to prevent unfair rejections of candidates’ nominations by election officials. However, he expressed concern that over time, the Supreme Court’s rulings have transformed this safeguard into an unforeseen measure, leading to permanent disqualification of lawmakers, which was not the original intent of the Constitution’s creators.

Justice Isa, while referring to Section 232(2) of the Elections Act, wondered: “Can’t we live with the determination by the parliament, which has set the disqualification of the lawmakers for five years.”

Justice Syed Mansoor Ali Shah, however, observed that the Elections Act has also ignored the Khakwani judgement since the amendment to the law has not suggested any procedure to determine the lawmakers’ disqualification.

CJP Isa, however, suggested that the parliament might address this in the future. He said the role of the court is not to fill in the blanks but rather examine legislation to determine whether it was made in accordance with the law and the Constitution. “I may not agree with the legislation, but I have to keep quiet as a judge,” he said.

‘Disconnect between Articles 62, 63’

Senior counsel Makhdoom Ali Khan, representing Jehangir Khan Tareen, argued that the Samiullah Baloch case created a disconnect between Articles 62 and 63 and should be overruled.

Mr Khan said he could not find a case from any common law jurisdiction where, as a result of civil liability and a decree by a civil court, a citizen was denied the protection of a fundamental right guaranteed by the Constitution for the rest of their life.

CJP Isa said there must be some logic and reasoning behind lifetime disqualification, adding that a person who “destroyed Pakistan” was allowed to contest elections but others were disqualified for life just for some errors in the nomination papers. “Have we lost all logic and sensibilities?” he wondered.

The counsel referred to a US Supreme Court judgement that rejected new qualifications for lawmakers sought by Congress. He reminded that the parliament in the 18th constitutional amendment did not mention that the declaration would remain forever.

He emphasised that the Samiullah Baloch case should be overruled because it reads into Article 62(1f) and then disqualifies a person and strips them of their fundamental rights under Article 17.

He also cited several cases, including those of Imran Khan, Faisal Vawda and others, where the author judge of the Samiullah Baloch case slowly moved away from the rigours of the case, stating this showed a judicial realisation.

Published in Dawn, January 6th, 2024