Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday remarked that the Supreme Court’s verdict on lifetime disqualification and the amendments made to the Elections Act, 2017 could not co-exist.
In a landmark verdict in 2018, the apex court had ruled that disqualification handed down under Article 62 (1)(f) of the Constitution was supposed to be “permanent”.
The law, which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous), is the same provision under which former prime minister Nawaz Sharif was disqualified in the Panama Papers case. Imran Khan was also disqualified under the same article in the Toshakhana case earlier this year.
However, in June, the then-coalition government had passed an amendment to the Elections Act 2017, which limited the disqualification of lawmakers to five years with retrospective effect.
Today, CJP Isa observed that either the SC’s 2018 verdict or the Election (Amendment) Act, 2023 could be upheld. He passed these remarks as the apex court took up case pertaining to the disqualification of ex-MPA Meer Badshah Khan Qaisrani.
During the hearing, Justice Isa noted that discrepancies in the SC’s interpretation and the law could result in “confusion” in the upcoming general elections and sent the matter to a three-judge panel, which would form the bench that would hear the case.
He also issued notices to Attorney General for Pakistan (AGP) Mansoor Usman Awan, advocate generals of all the provinces and the Election Commission of Pakistan (ECP) to assist the SC.
Meanwhile, Justice Athar Minallah asserted that polls would be held on February 8 and warned that anyone spreading uncertainty regarding elections would be guilty of contempt. The court also said that the current case would not be used by the ECP or anyone else for delaying the upcoming elections.
The hearing
At the outset of the proceedings today, CJP Isa inquired why the petitioner was disqualified. Advocate Saqib Jilani replied that Qaisrani was disqualified under Article 62(1)(f) of the Constitution on the basis of a fake degree in 2007. In 2018, the Lahore High Court had granted the ex-MPA permission to contest polls.
Justice Minallah pointed out here that the case was connected to the 2018 elections and inquired if it was still admissible in the run up to the upcoming polls. However, Jilani contended that the current case would have an impact on the upcoming elections as well.
Meanwhile, Justice Isa asked: “How can lifetime disqualification continue if a person’s sentence comes to an end?”
In his response, the lawyer said that a person should be disqualified for submitting nomination papers on false affidavits, adding that the SC had issued its verdict in the Panama Papers case on the interpretation of Article 61(1)(f).
“There are two opinions on the SC’s lifetime disqualification order,” CJP Isa said here. “If there is a strict punishment of lifetime disqualification in NAB cases, how long would the disqualification be for in murder cases?” he asked.
Advocate Jilani replied that the disqualification of a politician in a murder case was five years. Justice Minallah also noted that even for grave crimes like sexual abuse of a child the punishment was five-year disqualification.
The top judge then asked if a new law pertaining to Article 62(1)(f) and lifetime disqualification had been passed recently, to which the lawyer said the Elections Act was amended recently and disqualification was limited to five years.
Here, Justice Minallah noted that the SC’s verdict on lifetime disqualification had become “ineffective” after the amendments made to the Elections Act.
On the other hand, the CJP observed that these amendments had not been challenged and hence other parties would rely on them. “After the addition of Section 232 to the Elections Act, the concept of lifetime disqualification has come to an end,” he said.
According to the amendment to Section 232 (Qualifications and Disqualifications) of the Elections Act, a permanent bar or disqualification of a member is against “the letter and spirit of Islam” as well as the Constitution.
The top judge further noted that general elections were around the corner. He said returning officers, courts and tribunals would be confused on whether they should rely on the SC 2018 verdict or the Election Act amendments.
“This is not good for democracy,” he remarked.
“The Elections Act would apply to the upcoming polls,” Justice Minallah said, adding that all the judgments pertaining to lifetime disqualification had become ineffective after the changes to the elections law.
For his part, Jilani said Qaisrani’s appeal against disqualification was pending in the high court and urged the SC to issue an order on it. However, Justice Isa said the apex court could not issue orders to the high court, adding that the SC would decide on constitutional matters.
He further stated that the SC verdict on lifetime disqualification and amendments to Elections Act could not co-exist and either of them could be upheld.
“If there is five-year disqualification on crimes like treason, then why isn’t there a lifetime disqualification on not offering daily prayers and lying?” the chief justice asked.
At one point, CJP Isa asked AGP Awan about the government’s position on the disqualification, to which the latter replied that Section 232 of the Elections Act was superior to the SC 2018 verdict.
Subsequently, Justice Isa read out the order of the day and said the matter was pertaining to constitutional interpretation and should be fixed before a larger bench.
He then sent the matter to the three-judge panel responsible for forming benches. The court said that the matter would now be heard in January 2024.
