• Chief justice compares lifetime ban to ‘perpetual punishment’, muses how no judges could be appointed if Article 62(1)(f) were applied to them
• Notes how those who once ‘held country hostage’ over changes to lawmakers’ oaths are now fielding candidates for elections
• Laments practice of pick and choose that led to divergent decisions in Faisal Vawda and Samiullah Baloch cases

ISLAMABAD: Chief Justice Qazi Faez Isa on Thursday regretted that constitutional amendments dealing with the disqualification of lawmakers under Article 62(1)(f) were thrust upon parliament under peculiar circumstances, without any debate.

“I have repeatedly emphasised that there is a need to understand the broader picture and the way such amendments in the Constitution were brought in,” the CJP observed, adding these things were introduced during the martial law by dictators, when the will of one individual prevailed, merely because of the fear that otherwise the individual may perpetuate his rule for another 25 years. “Thus, these provisions were made fait accompli,” CJP Isa said.

A seven-member bench led by CJP Isa took up a set of 15 petitions to determine the period of disqualification under Article 62(1)(f), especially in light of the contradictions between two constitutional provisions — one prescribing a lifetime ban while the other entailing a five-year disqualification period. In the instant case, the court will decide whether the 2018 Samiullah Baloch case, or the 2023 amendments to the Elections Act 2017 that reduced the ineligibility period to five years, will prevail.

“The purpose of this adjudication is to make the lives of the returning officers easier, who may be facing a dilemma whether they should apply the Samiullah Baloch verdict or the Elections Act while accepting the nomination papers of the candidates for the upcoming elections,” said Justice Isa during the hearing.

Advocate Uzair Karamat Bhan­dari, who was appearing before the court as amicus curiae, contended that the parliamentarians could have repealed these provisions but chose to continue with Article 62(1)(f) at the time of the 18th Amendment’s passing in 2010.

‘Held country hostage’

But the CJP recalled that when the 18th Amendment was introduced in parliament, street protests had erupted. He further said those who held the entire country hostage and damaged the country, over bringing minor amendments in the oath of office for lawmakers, were now fielding their candidates without any repentance to contest the upcoming general elections slated to be held on Feb 8.

Although he did not name anyone, it seemed he was referring to the protests by the TLP in 2017, who accused then-law minister Zahid Hamid of “committing blasphemy” by changing the wording of an an oath taken by parliamentarians. The TLP saw it as a softening of the government position on Ahmadis, who are not permitted to identify themselves as Muslims.

Although the oath was hastily amended back to its original wording, Mr Hamid eventually had to resign as protesters held the capital under siege for weeks. “It is easy to talk against the parliament. We talk of the rule of law, but we have never heard anything from the mouth of the lawyers against dictators,” the CJP regretted.

At this, Mr Bhandari contended that he could not fight with those wielding guns, but could question lawmakers elected to parliament, over the issue of disqualification.

The CJP called for drawing a line and employing a structured discretion. He added that decisions should not be given on “mood swings by letting loose people like Faisal Vawda since he was remorseful but disqualifying others for life” under the 2018 Samiullah Baloch judgement.

“I wonder if anyone could become a judge in Pakistan, had parliament imposed similar conditions set in Article 62(1)(f) for judges,” the CJP quipped. “Thank God such a condition has not been forced upon us,” the top judge added.

Justice Jamal Khan Mandokhel, however, observed that it had become very easy for individuals to seek a declaration from the court that he was “sadiq and ameen” (righteous and honest) on the basis of the 2023 Faisal Vawda case.

But the counsel replied that he was sure the court would apply a stringent test for declaring someone honest. Justice Musarrat Hilali also wondered about the qualification criteria for a judge who declared lawmakers dishonest under Article 62(1)(f). The counsel stated he would prefer to abstain rather than respond to the observation made by the judge.

He, however, added that the court did not need to overrule the Samiullah Baloch judgement, since the verdict had also provided a way to wriggle out of the disqualification question by acknowledging that conditions like righteous, non-profligate, or sagacious were non-implementable, rather subjective and amorphous.

He said the said judgement had also discussed the concept of ‘Tauba’ (repentance), saying the stigma of disqualification could be washed away for showing “genuine repentance”.

Later, Faisal Siddiqui, another amicus, stressed the disqualification period under Article 62(1)(f) of the Constitution, saying it was important to know the intention of the parliament which inserted Section 232(2) in the election law.

While referring to the opening passage of the amendment in the Elections Act, the counsel emphasised that parliament had put a deeming clause by making this amendment retrospective from the date the 18th Amendment was adopted in 2010 — an amendment which introduced the phrase ‘declaration from court of law.’

“The bare reading of the law will show that the purpose of bringing amendment in the election act is to override the Samiullah Baloch verdict,” the counsel said, adding Section 232(2) of the election law would only be considered a correct law if the 2018 verdict was overruled.

“Otherwise, this section to the extent of the time frame but not the entire law would be in violation of the judgement,” he added.

‘Condemned for life’

At this, Justice Isa referred to Islamic concepts, such as ‘Tauba’, and said: “If you debar someone for life, you condemn the individual for life and then there was no redemption or forgiveness thus condemning the acts of the person in perpetuity. Is this in accordance with the Islamic injunctions?”

The CJP said the Samiullah Baloch judgement also touched upon the concept of ‘Tauba’ but does not attend to it in its entirety.

“This is not even in accordance with Article 62(1)(f),” the counsel replied, adding the Supreme Court had gone wrong in the Samiullah Baloch case.

The counsel also emphasised stopping the tendency of interventions by the courts by employing the tool of ‘reading into’ constitutional provisions unless it was necessary.

“The courts should be very careful in interpretations when it comes to political parties, the foundation of democracy and the leaders of the political parties or anything which seems to derail democracy or eliminate leaders permanently through judicial murders or life term disqualification,” he said

Published in Dawn, January 5th, 2024