Seven-judge bench reserves judgement regarding interpretation of Article 62 (1) (f) n Top judge says are we all bound by a clause added to Article 62 by one person (military dictator) n Justice Qazi Faez Isa asks are Pakistani politicians different from politicians of the whole world n Can the entire constituency suffer by the mistake of one person, asks Justice Musarat.

ISLAMABAD  -  A seven-member larger bench of the Supreme Court on Friday reserved its judgment in the case pertaining to the interpretation of Article 62(1) (f) of the Constitution and disqualification tenure.

The bench headed by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin Ud Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali heard the case. The bench reserved the verdict after all the respondents concluded their arguments.

During the course of proceedings, the CJP observed that the court would announce the short order soon.

Attorney General for Pakistan Mansoor Usman Awan and Jahangir Tareen’s lawyer Makhdoom Ali Khan gave arguments before the bench. 

The apex court had taken notice of the lifetime disqualification under Article 62(1)(f) in the appeal of former MPA Mir Badshah Qaisrani against his disqualification. The Chief Justice said; “Why are we overlooking constitutional history and fundamental rights? Will entering specific new clauses take away the remaining rights? If one person (military dictator) added a clause to Article 62, are we all bound by it?”

Justice Faez questioned that whether such a test exists for politicians in any other country and does any country in the world have such a challenging test before elections? 

Makhdoom Ali Khan, who represented Jahangir Tareen, said that there is no such test for politicians in any other country. Upon that the chief justice said, “Are our politicians different from the politicians of the whole world? Give personal information in nomination papers and become eligible for election.” 

Justice Jamal said that if a person is punished for fraud, can he contest elections after the punishment? Makhdoom replied that one can participate in the elections after serving the sentence for fraud. He added that people should decide who is Sadiq and Amin. Justice Musarat said, “Can the entire constituency suffer by the mistake of one person? Why was the whole constituency deprived of their representative because of a particular case made against him? She further questioned that if the court declares someone dishonest but the society considers him honest, what will happen to the decision?”

Justice Mazhar said, “Can the court declare Section 232 of the Election Act null and void?” Makhdoom responded that Section 232 has not been challenged before the court, therefore it cannot annul it. “The court should limit itself only to the decision of Samiullah Baloch. To uphold or to strike down Section 232 it is necessary that someone challenge it.” The chief justice said therefore they are not closing this door.

The Chief Justice said when the Parliament has fixed the period of disqualification then it became an academic question that what will be the period of disqualification?” He said the Parliament has said the disqualification under Article 62(1)(f) will be for 5 years. He inquired whether in the Sami Ullah Baloch case this Court had issued a notice of Order XXVII Rule 5 of Code of Civil Procedure, 1908 to the Attorney General for Pakistan and the Advocates General of all the provinces. The AGP replied ‘no’. 

Makhdoom Ali Khan also requested the court to overrule Samiullah Baloch because fundamental rights of the contestants were denied in this case.

Justice Mansoor questioned whether it is possible to amend the constitution through sub-constitutional legislation?” The Chief Justice said, “We have given the answer to this question in the Supreme Court Practice and Procedure Act’s decision.” He said the Parliament did not take away the SC power in the PPA, but has provided the appeal.

The Attorney General for Pakistan Mansoor Usman Awan asked the Supreme Court to overrule the SC judgment on Sami Ullah Baloch, which prescribed the long-time ban for the lawmakers disqualified under Article 62(1)(f) of the constitution.

The attorney general while arguing the case referred the Supreme Court judgment by a seven-member bench in Ishaq Khan Khakwani case. He said the judgment raised questions i.e. what would be the court of law. However, in the Sami Ullah judgment, by a five-judge bench, did not provide its answer. 

Justice Isa noted that the Ishaq Khakwani judgment has the reference of Sami Ullah case. However, the attorney general said it is not discussed, adding Justice Jawad S. Khawaja in its note had written that the matter needed to be seen in the relevant case, but it was not taken up later on.

Justice Faez said; “No one ever said this matter is under the jurisdiction of the Federal Shariat Court. Jurisdiction over Islamic matters belongs to the Shariat Court.” The Attorney General said that the decision of lifelong disqualification in the Samiullah Baloch case is not correct.

The AGP said; “the Supreme Court interpreted the constitution in a way which amounts to ‘read in’, adding the Parliament by legislation has not tinkered with the constitution, but only has given the guidelines that disqualification under Article 62(1)(f) is for five years.

Before the conclusion of the case, Advocate Shoaib Shaheen, focal person of the Pakistan Tehreek-e-Insaf, appeared before the bench and said that he would like to make some submission regarding the matter. 

The Chief Justice told him that they were waiting for political parties to appear before the bench, despite the fact public notice was issued in the newspapers. Justice Faez asked Shaheen, “It’s good that you have appeared before us.”

Shaheen contended that the Parliament through amendments in Section 232 of the Election Act has tried to nullify the constitutional provision Article 62(1)(f). The Chief Justice asked his opinion about relief given by the apex court to PTI member, Faisal Vawda, though the SC judgment of five-member bench in Sami Ullah case was in the field.