ISLAMABAD: Chief Justice Qazi Faez Isa on Thursday said the clauses of morality in Articles 62 and 63 were imposed, and parliamentarians are aware of their sources which have been incorporated in the constitution.

“Those sections related to morality have been fine-tuned by the lawmakers. One person (a military dictator) held the whole country a hostage. Street protests started in the country when the wording of the oath for the parliamentarians was changed in the Election Act, 2017.

“But the protesters (TLP) were allowed to take part in the elections, and they have no fear,” the CJP added.

Justice Faez further said all these things (clauses) were included in the constitution during the martial law period, adding he had never seen any lawyer arguing against martial law (before the court).

Advocate Uzair Karamat Bhandari, who appeared as amicus curiae, replied; “They can’t fight with those who carry guns, but can confront with persons whom we have sent to the Parliament.”

A seven-judge bench, headed by chief justice, and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Musarrat Hilali was hearing petitions regarding the discrepancy between the Supreme Court judgment on lifetime disqualification under Article 62(1)(f) of the constitution and the amendment made in Election Act, 2017.

The proceeding was broadcast live on the Supreme Court’s website.

Justice Jamal said that the SC’s judgment in Faisal Vawda case has made things easy, as anyone can approach the Court and say he repents and paid penance of mis-declaration made in the past, and now the Court declare him “Sadiq and Ameen”.

Bhandari argued that for accepting repentance and penance, the Court would have to apply a stricter test. He said the judge (ex-CJP Umar Ata Bandial) had not decided the case (Faisal Vawda) on the basis of his whims and caprice but must had passed that judgment on some reasonable grounds. Upon that, Justice Musarrat questioned; “Whether such declaration is also needed for the judges?”

Justice Mansoor said if a candidate comes before the Court and states that he had wrongly declared assets in the nomination papers, and now seeks an apology then would that be enough or still a declaration from court of law is required to wash out his guilt. He said the basic point for declaring someone dishonest or non-profligate for disqualification under Article 62(1)(f) is the information provided in the nomination papers.

The chief justice said though under Article 184(2), the Supreme Court can pass declaratory judgment, but can it do the same in Article 62(1) (f). Bhandari said without overruling the Samiullah judgment, Section 232 of the Election Act cannot be enforced. He asked the bench not to overrule or revisit the judgment but to find out some middle ground.

The lawyer questioned why in the 18th Amendment the Parliament not inserted time period in Article 62(1)(f), rather it added “there should be declaration from the court of law”, for disqualification under this article.

Bhandari contended that the key point in Samiullah Baloch’s judgment is “repentance”. “If this is established that repentance has been made genuinely and penance paid then the declaration regarding “Sadiq and Ameen” could be overturned. He, however, stated that the Samiullah has linked the disqualification with the declaration by court of law. As far as the decree or declaration against a person remains the ban of lifetime would continue. The CJP said they want “clarity” for the returning officers, who are scrutinising nomination papers whether the disqualification under Article 62(1)(f) is for a lifetime or five years, as provided in Section 232 of the Election Act.

Sheikh Usman Karim ud Din, another counsel who appeared on behalf of two appellants, argued that the Articles 62 and 63 are interchangeable. The chief justice inquired what is the English for “Sadiqand Ameen”. He asked whether General Ziaul Haq did not know the English words for “Sadiqand Ameen”. The chief justice said the SC judge who authored the judgment in Samiullah case, had also authored the judgment in Faisal Vawda case. He inquired whether the judgment of SC five-judge bench or three-judge will prevail. Sh Usman replied the judgment of the five-judge bench would prevail.

Former chief justice Umar Ata Bandial was part of a five-judge bench that delivered the judgment in Samiullah Baloch case. It was authored by him, and according to the judgment disqualification under Article under 62(1)(f) is for lifetime. The ex-CJP, however, in Faisal Vawda case, while heading a three-judge bench disqualified Vawda for one term for submitting a false affidavit in a dual nationality case.

The bench noted that in subsequent judgments the author of Samiullah judgment tried to get away with the lifetime ban for mis-declaration under Article 62(1)(f). The chief justice observed that the Supreme Court after Samiullah judgment also opened the door for the Parliament to attend the disqualification period in Article 62(1)(f) through legislation.

The case is adjourned until today (Friday).

Copyright Business Recorder, 2024