Chief Justice of Pakistan (CJP) Qazi Faez Isa expressed his concern on Friday about the “encroachments” made into the Constitution over the years, emphasizing the greater sanctity of the “original Constitution.” These remarks were made during the Supreme Court’s hearing of petitions seeking clarification on whether the disqualification period for a lawmaker is for five years or a lifetime.
The seven-member larger bench, led by CJP Qazi Faez Isa, aims to settle the debate surrounding the eligibility of individuals disqualified under Article 62(1)(f) of the Constitution to contest polls, considering amendments in the Elections Act 2017.
The legal complexity arose from a 2018 SC judgment in the Samiullah Baloch case, stating that disqualification under Article 62(1)(f) was deemed “permanent.” However, a June 2023 amendment to the Elections Act 2017 specified a five-year disqualification period, leading to the current legal quandary.
Justice Isa previously expressed regret over the amendments, highlighting that they were introduced during martial law without proper debate or consideration. The ongoing hearings seek to provide clarity on this constitutional matter.
Today Hearing
As today’s proceedings unfolded, the bench summoned Advocate Makhdoom Ali Khan, Jahangir Khan Tareen’s lawyer, to the rostrum. Khan argued that the Samiullah Baloch case established a “complete disconnect” between Article 62 and Article 63 of the Constitution, emphasizing that they address the disqualification of lawmakers with different considerations. He asserted that the Supreme Court, in that case, was not addressing a declaration made under the country’s penal laws.
Justice Syed Mansoor Ali Shah noted a potential benefit from the Samiullah case judgment, indicating that while the nature of the declaration was evident, the duration of the disqualification remained unclear. Makhdoom emphasized that the Samiullah case did not discuss a declaration under civil laws, raising questions about which court could grant such a declaration.
Addressing concerns about the duration of disqualification, Justice Shah proposed the possibility of legislation specifying a timeframe. Makhdoom argued that Article 62(1)(f) does not mention a declaration from a civil court, maintaining that the Constitution separates qualification and disqualification.
In response to queries about the applicability of Article 62 at any time, Makhdoom clarified that Article 63 applies at any time, while Article 62 applies only during elections. Chief Justice Qazi Faez Isa intervened, expressing concern that the court seemed confined to a specific provision without considering the broader constitutional context. He emphasized the need to understand the Constitution as a whole, lamenting the successive encroachments into it throughout history.
The Chief Justice highlighted the greater sanctity of the original Constitution and questioned the logic behind lifetime disqualification. He criticized the lack of public input during constitutional amendments and questioned the effectiveness of the test for parliamentarians in Pakistan compared to other countries. Makhdoom referred to a US Supreme Court judgment and emphasized that the Constitution should be logical and understandable for the people of Pakistan.
As the hearing progressed, the Chief Justice reiterated the need for logic and clarity, emphasizing that the Constitution is for the people of Pakistan. Makhdoom argued that the current situation was a product of legal imagination and suggested leaving the issue for another day rather than striking down or upholding the Samiullah case judgment.
