Chief Justice Qazi Faez Isa says ban on someone for life means you condemn that person for life n Seven-judge bench to resume hearing case regarding lifetime ban on lawmakers today.

ISLAMABAD   -  Chief Justice of Pakistan Justice Qazi Faez Isa Thursday said that the court wants clarity for the Returning Officers who are scrutinising nomination papers that whether the disqualification under Article 62(1) (f) is for lifetime or for five years as provided in Section 232 of the Election Act.

A seven-member bench of the apex court headed by Chief Justice and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminud- Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilal conducted hearing of the petitions regarding discrepancy between the Supreme Court judgment on lifetime disqualification under Article 62(1) (f) of the constitution and the amendment made in Election Act, 2017. The proceeding was live broadcast on the Supreme Court’s website.

At the outset of the hearing, Advocate Khurram Raza, who is in favour of lifetime disqualification, came to the rostrum. The lawyer raised questions about the maintainability of the proceedings. He asked, “Under what provision of law are these proceedings being conducted?” However, the bench directed Raza to stick to his petition.

Resuming his arguments, the counsel said that the election tribunal could only grant a declaration and that the right could not be exercised by the high court or SC directly. However, he continued, cases against orders passed by the tribunal could be heard by the apex court under the scope of appeal.

Here, the CJP said that this debate would not resolve the problem before the court. “Let us not go into the powers of the election tribunal. This is not the question of the election tribunal or election commission exercising a power, it is about a power exercised by a constitutional court,” he highlighted. 

For his part, Raza said that any declaration in the election tribunal or by the SC in the appellate jurisdiction was covered in Article 62(1) (f).

“Let’s clarify, the election tribunal will exercise powers only under the law […] therefore when the SC is exercising such powers it cannot have more powers than the election tribunal or the Election Commission of Pakistan,” Justice Isa said.

He added, “Unless you can show that the ECP and the election tribunal can also disqualify for life, then that power will also be with the SC, otherwise it will be an additional power given to the Supreme Court under Article 62(1) (f).”

Bhandari argued that for accepting repentance and penance the Court would have to apply stricter test.

He said the judge (ex-CJP Umar Ata Bandial) had not decided the case (Faisal Vawda) on the basis of his whims and caprice, but must had passed that judgment on some reasonable grounds. Upon that Justice Musarrat questioned; “Whether such declaration is also needed for the judges?”

Justice Mansoor said that if a candidate comes before the Court and states that he had wrongly declared assets in the nomination papers, and now seeks apology then would that be enough or still declaration from court of law is required to wash out his guilt. 

He said that declaring someone dishonest or non-profligate for the disqualification under Article 62(1) (f) the construction is the information provided in the nomination papers. The CJP said that though under Article 184(2), the Supreme Court can pass declaratory judgment, but can it do the same in Article 62(1)(f). Bhandari said without overruling the Samiullah judgment Section 232 of the Election Act can’t be enforced. He asked the bench not to overrule or revisit the judgment but find out some middle ground.

The lawyer questioned that why in 18th Amendment the Parliament not inserted time period in Article 62(1)(f), rather it added ‘there should be declaration from the court of law’, for disqualification under this article.

Bhandari contended that the key point in Samiullah Baloch judgment is “repentance”. “If this is established that repentance has been made genuinely and penance paid then the declaration regarding ‘Sadiq and Ameen’ could be overturned. He, however, stated that the Samiullah has linked the disqualification with the declaration by court of law. As far as the decree or declaration against a person remains the ban of lifetime would continue.

Sheikh Usman Karim ud Din, another counsel who appeared on behalf of two appellants, argued that the Article 62 and 63 are interchangeable. The Chief Justice inquired from him what is English for ‘Sadiq & Ameen.’ He asked whether General Zia ul Haq did not know the English words for ‘Sadiq & Ameen.’ 

Justice Isa said that the SC judge who authored the judgment in Samiullah case, had also authored judgment in Faisal Vawda case. He inquired whether the judgment of SC five-judge bench or three-judge will prevail? Sh Usman replied the judgment of five-judge bench would prevail.

Former chief justice Umar Ata Bandial was part of a five-member bench that delivered the judgment in Samiullah Baloch case. It was authored by him, and according to the judgment disqualification under Article under 62(1)(f) is for lifetime. The ex-CJP, however, in Faisal Vawda case, while heading a three-judge bench disqualified Vawda for one term for submitting a false affidavit in a dual nationality case. 

The bench noted that in subsequent judgments the author of Samiullah judgment tried to get away with the lifetime ban for mis-declaration under Article 62(1) (f). The Chief Justice observed that the Supreme Court after Samiullah judgment also opened the door for the Parliament to attend the disqualification period in Article 62(1) (f) through legislation.

Usman also argued that the Supreme Court in Allah Dino Bhaio case in 2013 had declared that the disqualification period under Article 62(1)(f) is for life, adding that the Court in Samiullah Baloch case relied upon Allah Dino case, which in review was set aside by the apex court in 2020. The Chief Justice asked from him that you mean to say that when the base of Samiullah was set aside then how it can survive.

Meanwhile, the top judge said that Article 62(1)(F) calls human beings bad but lifetime disqualification closes the door to repentance. He said that a person can be forgiven if he repents. “Disqualifying anyone [for life] is against Islam,” he added. “How can the court close the door to repentance if the God didn’t,” CJP Isa remarked. 

“If you debar someone for life, you condemn that person for life. There is no redemption or forgiveness which Samiullah Baloch [decision] also touches upon but does not attend to it at all,” he observed. 

The chief justice said forgiveness “comes from within” and therefore acts could be punished “for a particular period” but it did not mean a permanent condemnation.

“No person can be condemned. The door of mercy will remain open up there [in the heavens] and if a person changes their ways then only their past actions should be condemned instead of their personal self,” CJP Isa said.