ISLAMABAD - Justice Sheikh Azmat Saeed in his eight-page additional note on Friday observed that the top court could only interpret the Constitution not amend or change it.

Justice Saeed observed that it was ironic that those who argued for a period of disqualification under Article 62(1)(f) were or had been the members of parliament when the amendments were made in that regard.

He further observed that the framers of the Constitution chose not to do so, and now the issue was standing in the way of those who were members at the time of amendment.

Justice Saeed is member of five-judge larger bench, which on Friday announced a unanimous judgment in different applications with a common question as to whether the incapacity imposed by Article 62(1)(f) upon a member of Parliament was of perpetual effect, if there was any decision against him by a court to the extent that he lacked sagacity or was dishonest.

Justice Saeed stated that Article 62(1)(f) was required to be interpreted as it stood today, adding that a plain reading of the said article revealed that a person must be sagacious, righteous, non-profligate, honest and if there was any declaration by a court of law then the person should not be qualified to be a member of Parliament.

“A declaration by the Court of Law would mean a conclusive finding. Obviously, such finding would be with regard to a lis before the court, arising out of the violation of a law or non-fulfilment of a legal obligation,” Justice Saeed observed.

He further observed that the legal and logical conclusion would be as long as the declaration of a Court of Law holds the field its effect, then the lack of qualification shall also prevail.

Justice Saeed stated that each and every counsel was confronted with interpretation of Article 62(1)(f) that the lack of qualification was the effect of the declaration by a Court of Law and the duration of such effect would be the duration of declaration.

“None of the learned counsels, who appeared before us confronted the elephant in the room that is the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a member is the effect of declaration by a Court of Law, which is the cause and period of lack of qualification would be co-extensive with the period to the cause that is declaration. None of the learned counsels refuted the aforesaid obvious interpretation but only sidestepped the issue,” the additional note stated.

“Some of the learned counsels also voiced that perhaps the effect of Article 62(1)(f) of the Constitution qua the period of lack of qualification may be disproportionate and a little harsh. Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. This aspect of the matter is rather ironic as several persons before us were or had been the members of Majlis-e-Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way,” it added.

The reasons for disqualifications provided in Article 63(1)(h) do not appear to be congruent with the lack of qualifications as set forth in Article 62(1(f), he added.

“More importantly, if such an interpretation is accepted, it would make Article 62(1)(f) of the Constitution superfluous and redundant,” stated the additional note.

Justice Saeed, however, appreciated the Attorney General for Pakistan (AGP) Ashtar Ausaf and stated that the stand taken by the former was not only fair but was also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution.

 

 

Court can only interpret, not amend Constitution: Justice Saeed

 

Syed Sabeehul Hussnain