ISLAMABAD - The Supreme Court was informed on Wednesday that the parliament deliberately did not set a time period for disqualification in Article 62, and reposed trust in the courts to determine the disqualification period for a convicted person.

Barrister Zafar who was appointed as amicus curiae in the case, told the Supreme Court.

The chief justice asked Barrister Zafar about his stance on the disqualification period, saying whether it could be for life or a certain period of time after declaring a person was not Sadiq and Amin.

Barrister Zafar argued that in order to understand the question, the Constitution has to be interpreted according to the principles of ‘structural modality’ which is also known as the ‘rule of harmony’, ‘rule of completeness’ or ‘rule of exhaustiveness’.

Onset of the proceeding, Chief Justice Mian Saqib Nisar, heading a larger bench of five judges, said they have received a concise statement of Mian Muhammad Nawaz Sharif, as no one even the Advocate on Record made an appearance on his behalf so why not dismisses it. However, it was decided otherwise and made it part of the proceedings.

The chief justice appreciating the presence of Raja Zafar-ul-Haq said that his presence makes them feel comfortable. The CJP asked him to bring the disgruntled leaders of PML-N who criticise the courts.

Barrister Zafar submitted that the entire Constitution has to be read together as no particular article of the Constitution lives in a vacuum, rather each article relies and builds upon other provisions of the Constitution.

He said that it is the fundamental right of a person to contest election. Upon that the chief justice remarked that it was not an unqualified right, adding taking into consideration the Article 62 is qualified right.

Barrister Zafar argued there are three possible time periods which can be laid down by the court in this case as one extreme position is to disqualify a person for life while other extreme is to disqualify a person only for a term of the Parliament.

He said both extreme positions are not correct; rather under Article 62 the Supreme Court has been given the jurisdiction by the Parliament to determine the period of disqualification which cannot be less than five years and it may extend the time period for which the person could be sentenced.

He said the Constitution is a living document, a living organism and has even been compared with a living tree which grows and blossoms with the passage of time to keep pace with the growth of the country and its people.

Based on this principle, he stated a wider construction has to be given to the various provisions to meet the changing circumstances with the passage of time.

Barrister Zafar submitted that according to the Constitution, the lawmaking is the job of Parliament as the judges do not make laws.

Relying on the decision of Justice Mian Saqib Nisar in an earlier case, he said it has now been established that there can be no judicial aggrandizement of power at the expense of the elected representatives of the people and judges cannot act or take away or modify the latter of the law.

He argued that there is no difference practically in Articles 62 and 63 and both are self-executory and contain within them the rights of the people of Pakistan and the fundamental rights of those who want to participate in elections.

Barrister Zafar said that applying the structural modality, since both Articles 62 and 63 deal with the same situation, both have to be read together. “If a person is convicted under Article 63(1)(h) for an offence of moral turpitude and sentenced to the maximum sentence of seven years, and then a further period of five years has passed after his release (making a total period of 12 years), then he is entitled to contest elections,” he added

He also contended that a person once convicted would not be Sadiq and Amin. If Article 62(1)(f) is interpreted that the disqualification of declaration applies for life then the person in spite of the 15 years period having passed would still be disqualified.

“This was a direct conflict and needed to be harmonised according to the structural modality otherwise Article 63(1)(h) would become redundant.”

He stated that some persons, like former prime minister Mian Nawaz Sharif who had been disqualified under Article 62 for an offence which under Section 78 of ROPA carries a sentence of up to three years, the period of disqualification for such a person would be a total of three years of the conviction and a further five years, totalling to a period of disqualification lasting eight years from the date of declaration by a court.

He has concluded his submission. From today (Thursday) Asma Jehangir will argue the case.