ISLAMABAD -  The Supreme Court ruled yesterday that it’s the sole obligation of the top court to determine the duration of the disqualification period of a public representative.

Appearing before the court, Asma Jahangir argued that disqualification under Article 62 should not be more than five years, and urged the court to keep in view its connectivity with Article 63 of the constitution.

A five-judge larger bench, headed by Chief Justice Mian Saqib Nisar, is hearing 17 appeals against disqualification of lawmakers, and the court is seized with the matter of determining disqualification period under Article 62 (1)(f).

The case is of great politico-legal importance as a number of lawmakers, including former prime minister Nawaz Sharif, have been disqualified under this clause, which sets the precondition for a member of parliament to be "sadiq and ameen" (truthful and honest).

The other members on the bench, which heard the case on Thursday, are Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah. Three of them, excluding Justice Shah, have given either observations or judgements in the Panama Papers case – which Sharif was disqualified.

Representing former Pakistan Tehreek-i-Insaf MNA Rai Hasan Nawaz, who was recently disqualified by an election tribunal over non-disclosure of assets, Asma Jehangir termed Article 62 (1)(f) vague and it was difficult to determine the honesty and trustworthiness of an individual.

She said the court should not deal with political questions, asserting that determining the dignity and character of the electors should be left to the electorate. The court should not shrink their choice by disqualifying public representatives, she said, adding that making bachelor degree compulsory had also limited the options for voters.

Moreover, Asma said, judging someone’s character was a difficult task. Under what procedure the fame or character of a person will be established, she asked. "Which court will declare the character of a person?"

She also asked how in Article 62 this court or some other court would define word sagacious. She said Article 62 also does not state as to which court is to issue declaration with regard to a person’s conduct and eligibility.

The advocate said that before 1985 court orders were not mandatory for the disqualification of a legislator. She said if Nawaz Sharif was Sadiq and Ameen in 2009 then why the apex court has now raised the bar for honesty and truthfulness.

She said neither the parliament nor other institutions were independent in Pakistan, and many other countries have the same issue. She said that during Ziaul Haq regime she was afraid to participate in the protests because of an institution [army].

Upon that the chief justice said: “Your perception [about freedom of institutions] is not correct.”

Asma said, “Even the parliament amended constitution and Army Act for setting up military courts in Pakistan as all the political parties had stakes.” Before Article 62 there was PRODA in the constitution, and 7,000 people were executed under that law.

She said earlier the punishment for moral turpitude was five years, adding that from 1985 to 1999 no parliamentarian was disqualified and in Legal Framework Order 2003 the Representation of People’s Act (ROPA) 1976 was amended.

She said if the apex court is supposed to address political questions then it would also define the ideology of Pakistan, which is a complex task as it involves several ambiguities. It is the sole responsibility of the parliament to deliberate on political matters rather than any other state institution, she stressed. How can the judiciary do what the parliament did not, she questioned.

Justice Umar Ata Bandial remarked that the bench was not dealing with the matter of ideology of Pakistan. He said the court resolves concrete questions and not hypothetical matters, and they couldn’t address legal questions on the basis of mere assumptions.

Justice Ijazul Ahsan asked Asma if she wanted that the court should dilute what the legislators could not do.

Justice Bandial asked whether Article 62 has something substantive or is subservient to Article 63. He also asked that how both these articles could be harmonised.

Asma argued that there should be modest expectations from the parliamentarians. The Supreme Court should look both the Articles 62 and 63 together as they were interconnected, she added.

The chief justice said both the articles were independent and acknowledged that it was a difficult task to explain them. He said disqualification under the law will be valid till the declaration is admissible.

The chief justice said when the court could not strike down Article 62(1)(f) then what was the way of its interpretation. He also asked whether there has to be a standardised bar on the persons to contest elections.

Asma replied that the apex court hardly has tools to measure the sagacity of a person.

Upon that Justice Ijaz said: “But we have tools to measure the honesty as the people of Pakistan do not want that dishonest persons should be in the legislature.”

The lawyer then said the court could interpret the words ‘Honest and Ameen’ in Article 62(1)(f) but there should not be same period of disqualification for all.

If a person is not sagacious then the disqualification period should be less, she said, while it should be more in case of dishonesty. However, she asserted that the maximum period of disqualification should not be more than a parliamentary term.

The chief justice asked her if she wanted to say that if a person is declared lacking sagacity then he must be disqualified not for a full term but only for a period corresponding to one by-poll, and if a person on record is declared dishonest then he should be disqualified for one full term or five years.

The chief justice also asked Asma if she wanted to say that dishonesty was a frame of mind, as one can be dishonest in the eyes of one person and honest for another.

The chief justice then ruled that it’s the sole obligation of the top court to determine the duration of the disqualification period of a public representative.

After Jahangir completed her arguments, the bench adjourned the hearing till February 12 and directed the Attorney General of Pakistan to appear before the court on the next hearing to present his arguments.

 

SC advised not to deal with political questions