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SC DECLARES LIFETIME DISQUALIFICATION OF LAWMAKERS 'NULL AND VOID'
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Tuesday, 9 January, 2024 I 26 Jamada Al-Sani, 1445
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SC WITH MAJORITY 6:1 RULES AGAINST DISQUALIFYING LAWMAKERS UNDER ARTICLE 62(1)(F) FOR LIFE
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ISLAMABAD
VERDICT TO ALLOW NAWAZ SHARIF AND JAHANGIR TAREEN CONTEST UPCOMING POLLS
STAFF REPORT
HE Supreme Court (SC), announcing its reserved verdict on Monday, declared lifetime disqualification for lawmakers under Article 62(1)(f) of the Constitution null and void. The bench hearing the case was headed by Chief Justice of Pakistan Qazi Faez Isa and comprised Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali resumed hearing a set of petitions to determine the disqualification period of lawmakers. The decision was passed by a majority of 6:1; Justice Yahya Afridi dissented from the majority judgment. The verdict would allow Pakistan Muslim League-Nawaz (PML-N) supreme leader Nawaz Sharif and patron-in-chief of Istehkam-e-Pakistan Party (IPP) Jahangir Tareen to contest the upcoming general elections, scheduled to be held on February 8. “Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such decla-
ration,” a written order issued by the top court stated. It stated that there is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification. “The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into
Shehbaz Sharif, Mian Azhar, others allowed to contest elections ISLAMABAD
STAFF REPORT
Appellate tribunals on Monday allowed PML-N leader Shehbaz Sharif, PTI leader Mian Azhar and others to contest elections. PML-N President and former prime minister Shehbaz Sharif was cleared by an appellate tribunal to vie for election from NA 242 (Karachi). Appellate tribunal, while rejecting the appeal of Masood Khan Mandokhel, allowed younger Sharif to take part in election for NA 242. Former Punjab governor and Pakistan Tehreek-e-Insaf (PTI) candidate Mian Azhar got a go ahead by an appellate tribunal from NA 129 (Lahore) constituency with acceptance of his nomination papers. Tribunal judge Justice Tariq Nadeem heard the appeal of PTI candidate and declared returning officer’s decision as null and void. An election tribunal rejected appeal of PTI candidate Ebad Farooq from PP 150 against RO’s decision to reject papers. An election tribunal upheld decision of the returning officer in respect of PPP candidate Jamal Raisani. The RO had rejected nomination papers of the PPP candidate from NA 264 (Quetta). PTI candidates Atif Ayub Mayo and Ammar Ali Jan were cleared by election tribunal to contest polls from PP 160. Both had challenged RO’s decision for rejecting their nomination papers. While allowing the appeal of both PTI candidates, Justice Tariq Nadeem of Lahore High Court said everyone should keep in mind that judges were hearing the appeal of candidates with open mind and heart. He remarked that court was deciding appeals as per law and constitution. He said they had no prior mindset. PTI candidate Muhammad Farooq’s nomination papers for PS 125 were rejected. The appellate tribunal judge upheld the decision of the returning officer. Similarly, PTI candidates Amjad Khan from PS 116, Hassan Zaib from PS 118 and Abdul Qayyum from PS 63 (Hyderabad) were granted permission to vie for election. The appellate tribunal turned down ROs decision of rejecting their papers. The appellate tribunal would continue hearing and deciding the appeals filed by candidates against ROs’ decision till January 10. Meanwhile, GDA candidates Zulfiqar Mirza and Fehmida Mirza’s nomination papers were not accepted by the election tribunal. The tribunal upheld the decision of RO. Ali Amin Gandapur was also allowed to contest polls by an appellate tribunal from NA 144 and two provincial assembly constituencies.
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the Constitution,” the order added. “Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.” The top court stated that until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.
“The view taken in Sami Ullah Baloch v Abdul Karim Nausherwani treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled,” it stated. Justice Yahya Afridi, in his dissenting note, said that the conclusion drawn by the court in Sami Ullah Baloch Versus Abdul Karim Nousherwani case was legally valid. “With profound respect, I disagree [with the verdict]. For reasons to follow, the extent of lack of qualification of a member of the Parliament, a envisaged under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973, is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force,” he added. The SC, on January 5, reserved its decision in the matter related to the reexamining of the lifetime disqualification of lawmakers under Article 62 (1) (f) of the Constitution with Chief Justice of Pakistan Justice Qazi Faez Isa favouring the “original Constitution”, lamenting “encroachments” made into the country’s bill of rights over the years.
Kabul does not intend to harm Pakistan, Afghan PM tells Maulana Fazl KABUL
STAFF REPORT
Afghanistan Prime Minister Mullah Hasan Akhund on Monday told Jamiat Ulema-i-Islam Fazl (JUI-F) chief Maulana Fazlur Rehman that Kabul “did not intend to harm” Pakistan or any other country. The Afghan premier passed these remarks during a meeting with an 11-member delegation led by Fazl, who arrived in Kabul a day earlier on the Afghan interim government’s invitation. The trip is the JUI-F’s first visit to the neighbouring country since the Taliban takeover in 2021. A statement issued by the Afghan government spokesperson Zabihullah Mujahid today quoted Mullah Hasan as saying that the “Islamic Emirate will not allow anyone to pose a threat to any country”. The Afghan PM described the role of religious scholars as very
important to resolve problems and remove misunderstandings between Islamabad and Kabul, it said. The Taliban leader also called for a halt to what he called Pakistan authorities’ “brutal” policy against Afghan refugees. “Such kind of behaviour does not solve the problems but leads to mistrust,” the statement quoted Mullah Hasan as saying. Meanwhile, Afghan acting Foreign Minister Amir Khan Muttaqi — who also attended the meeting — mentioned “the problems of Afghan traders” and the issues created by Pakistani officials in transit trade and exports. Muttaqi was quoted as saying that “trade and bilateral economic issues should not be sacrificed for political purposes”. The statement said Fazl described the “victory of the Islamic Emirate against the invasion as a major success and congratulated the people of Afghanistan”.
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The JUI-F chief also hoped that the Islamic system in Afghanistan would be further strengthened, which would have a positive impact on the Islamic world. “The purpose of my visit is to remove misunderstandings between the two countries,” Fazl was quoted as saying. Further, both sides called for joint efforts to find solutions to the persisting problems in Afghanistan and Pakistan. Separately, a statement issued by the JUI-F media cell after the meeting said Fazl stressed on finding ways of cooperation between the two countries in politics, economy, trade and mutual development. He also maintained that the JUI-F had raised its voice in protest against the deportation of Afghan nationals. “We consider this kind of behaviour wrong and a cause of problems between the two countries,” the statement quoted Fazl as saying.
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Senate Secretariat says bill on enforced disappearances ‘never went missing’ ISLAMABAD
STAFF REPORT
The Senate Secretariat on Monday said the bill pertaining to enforced disappearances “never went missing” and was “returned to the National Assembly” after being passed by the upper house of Parliament. The Criminal Law (Amendment) Bill 2021 was passed by the NA on November 8, 2021, and aimed at making amendments to the Pakistan Penal Code (PPC) and Code of Criminal Procedure. In 2022, former human rights minister Dr Shireen Mazari had alleged that the bill had gone “missing” after it was sent to the Senate, having been passed by the relevant standing committee and the NA. Later, Mazari had also claimed that she was asked to appear at the Inter-Services Intelligence (ISI) headquarters over the bill. She had added that after the bill was tabled in the NA, it was referred to the interior committee where “invisible shadows” tried to change the clauses. She had regretted that the bill “disappeared” on the way to the Senate. The issue of the “missing” bill cropped up in the Supreme Court on January 2 during the hearing of a case on enforced disappearances. Chief Justice of Pakistan (CJP) Qazi Faez Isa had expressed surprise over the disappearance of the bill from the Senate, particularly as it had occurred during the PTI’s time in power. “It is strange that a minister is saying her bill disappeared,” Justice Isa had wondered, noting that a “serious allegation” had been levelled against Senate Chairman Sadiq Sanjrani. In a statement issued on Monday, the Senate Secretariat, while referring to the top court’s Jan 2 hearing, said a reference was made to the bill “which originated in the National Assembly but presumably vanished when it was transmitted to Senate”. “Moreover, it was claimed that the efforts of the federal minister to get the said bill passed were thwarted by the Senate chairman. However, the Supreme Court rightly noted that it would not be appropriate to attend to the above allegations made against the Senate chairman. “Still, a false impression was created in the media that the bill actually went missing and Senate chairman or Senate Secretariat had a role in it,” it noted. The Senate Secretariat said that the “preposterous of the bill vanishing or alleged interference” by the chairman was contradicted by factual details, highlighting that the said bill was introduced by the then interior minister in the NA on Jan 7, 2021. It said the bill was passed by the NA on November 8, 2021, and as per constitutional and rules requirements, was sent to the Senate on November 10, 2021. The bill was tabled in the Senate on July 29, 2022, the Secretariat stated, adding that it was the prerogative of the government to decide the timing of the tabling of a bill in the house by placing it on the proposal for the orders of the day provided by the Ministry of Parliamentary Affair. “Senate is not mandated to bring a government bill on the agenda on its own,” it said. “After tabling in the house, the bill was referred to the standing committee for consideration and report,” the Senate Secretariat said. “The bill was passed by the Senate on October 20, 2022, with some amendments,” it added.
CJP Isa advises PTI counsel not to level allegations against constitutional body without evidence ISLAMABAD
STAFF REPORT
Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday asked PTI lawyer Latif Khosa to abstain from levelling accusations against a constitutional body unless substantiated by evidence. The CJP’s comment came as the apex court heard the PTI’s petition, seeking contempt charges against the Election Commission of Pakistan (ECP) for purportedly violating the SC’s directives
from December 22, aimed at ensuring a “level playing field” for the party in the upcoming elections. Heading the bench alongside Justice Muhammad Ali Mazhar and Justice Musarrat Hilali, CJP Isa stressed the importance of supporting allegations with proof. The proceedings were being livestreamed on the SC’s website. The hearing came a day after the ECP submitted a response to the Supreme Court stating that 76% of the PTI’s nomination papers for the upcoming elections
had been accepted, contradicting the party’s assertions of an uneven playing field. The ECP, citing data from returning officers, maintained that 598 out of the party candidate’s 843 nomination papers for the National Assembly have been accepted, whereas 1,398 out of 1,777 nomination papers were accepted for the provincial assemblies. Irked at the PTI counsel’s ‘politicisation’ of the matter, the CJP asked Khosa if he wanted the SC to rule that all the nomination papers filed by his
party’s candidates must be accepted. “What is wrong with the [ECP’s] report?” Justice Isa asked the counsel. The top judge asked Khosa to submit in writing anything that he thought was wrong with the ECP Punjab chief secretary’s written reply, submitted to the SC. “Do not make verbal accusations,” Justice Isa cautioned. “Do not beat around the bush. Tell us exactly what you seek from the SC. If there is any state institution you don’t have faith in, tell us… we will pass a suitable order in light of that,” the CJP observed.
SC seeks to fix history in ZA Bhutto reference: CJP Isa ISLAMABAD
STAFF REPORT
Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday said that the Supreme Court is currently looking at one person’s honour and seeking to fix the history “as it wants to set a better example” in a presidential reference pertaining to a death sentence awarded to former premier Zulfikar Ali Bhutto. The CJP made these remarks during the hearing of the presidential reference seeking to review the death sentence awarded to the Pakistan Peoples Party (PPP) founder. The apex court larger bench — led by CJP Isa and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed
Hasan Azhar Rizvi and Justice Musarrat Hilali — resumed hearing of the presidential reference seeking to revisit the 1979 “controversial” death sentence. Bhutto was hanged to death on April 4, 1979, in the Rawalpindi district jail in a murder case. His party, however, termed the capital punishment to Bhutto as “judicial murder”. Former president Asif Ali Zardari, on April 2, 2011, approached the apex court through a presidential reference under Article 186 of the Constitution to seek its opinion on revisiting the trial of the Pakistan Peoples Party (PPP) founder. During the previous hearing on December 12, 2023, Justice Mansoor raised questions over the presidential reference. The SC judge sought assistance in determining the questions of law, observing that the court had already dismissed the appeal against its ver-
dict which had also achieved the finality. “The Supreme Court can’t hear another appeal on the matter. How can we rehear the matter that had been closed?” The court proceedings of the reference were broadcast live on the official website and the YouTube channel of the Supreme Court. At the outset of the hearing, PPP leader Senator Raza Rabbani came to the rostrum. “Are you an amicus curiae?” questioned CJP Isa. To this, Rabbani said he was representing Sanam Bhutto, Bakhtawar Bhutto and Asifa Bhutto in the case, adding that he has submitted a petition to become a party in the case. Meanwhile, Zahid Ibrahim, said he was representing Zulfikar Bhutto Jr and Fatima Bhutto. Amicus curiae Makhdoom Ali Khan then began his arguments, saying that the chief justice had sought the transcript of an interview in the same case.
At this, Justice Mazhar said that this reference was based on the interview of former judge Justice (retd) Naseem Hasan Shah. Justice Shah said that the top court cannot decide on the case just by watching an interview. “The court can only give an opinion on legal questions under Article 186,” he added. At this, Makhdoom said that the question is not about Bhutto’s execution but about the stain on his character. “Later, one of the judges said in an interview that he gave the verdict under pressure,” he said. After this, the court played the interview of Justice (retd) Shah’s interview. Justice Shah said that only one of the judges gave an interview while others — who were a part of the bench — remained quiet. Justice Shah remarked that the only point is that the judiciary was not independent at that time.
Justice Afridi then said that a single interview could not decide that the judiciary was not independent at that time. “There were other judges who wrote their notes and dissented,” he added. At this, the CJP highlighted that the ratio of the bench in Bhutto’s case was such that the opinion of one judge was also important. Makhdoom then compared the reference to Samiullah Baloch case, saying the judge who wrote the verdict withdrew his decision. He said that the court should reexamine the case if it believes justice was “massacred”. Later, Justice Hilali said that the court needs to fix the history as this “black spot” is not only on a person’s character but also on some institutions. The apex court then adjourned the hearing till the third week of February keeping in view the upcoming general elections.