Disqualifying someone for life violates basic human rights, SC told

• SC grants Nawaz Sharif’s counsel seven days for preparation in disqualification span case

• Waseem Sajjad says present form of Article 62 is confusing and there is a need to resolve controversy around it

ISLAMABAD: The Supreme Court (SC) has given a week’s time to deposed prime minister Nawaz Sharif’s counsel to present his arguments regarding the matter related to the determination of disqualification time period under Article 62(1) (f) of the Constitution, as a lawyer told the bench that the right to contest in elections is a fundamental right and lifelong disqualification infringes upon those rights.

The case ─ focused on ascertaining the period of disqualification of a member of parliament under the constitutional article ─ is being heard by a five-judge bench headed by Chief Justice of Pakistan (CJP) Mian Saqib Nisar and comprising Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Sajjad Ali Shah.

The case is expected to have a substantial effect on disqualified politicians, including Nawaz and former Pakistan Tehreek-e-Insaf (PTI) secretary general Jahangir Tareen.

Advocate Azam Tarar, the lawyer representing Sharif, told the bench during Wednesday’s hearing that he was asked to appear in court on Tuesday evening, therefore he needed at least three days to prepare his arguments.

Accepting his request, the court gave the lawyer until next week.

During the hearing, the CJP questioned whether a parliamentarian, who has been disqualified under Article 62 (1) (f) three months before the general election, would be eligible to contest the polls.

Waseem Sajjad, counsel for a petitioner, stated that the present form of Article 62 is confusing and that there is a need to resolve the controversy around it.

He stated that Article 62 (1)(f) does not give ‘punishment’ which is mentioned in Article 63 of the Constitution. According to said article, time duration of disqualification will be five years.

However, Justice Azmat Saeed Sheikh said if the court accepts this interpretation then Article 62 will be redundant.

“Disqualification lasts for five years,” Tariq Mahmood, the counsel representing Samina Khawar Hayat, who was disqualified in a fake degree case in 2013, told the bench. Mahmood also recalled that the court had disqualified General (r) Pervez Musharraf for life in 2013.

Appearing before the court, human rights lawyer and activist Asma Jahangir said, “There are some people who are affected by article 62(1)(f); ordinary people who want to be part of this case as well.” In response, the chief justice told her, “They can jointly appoint a lawyer to represent them.”

‘LIFELONG DISQUALIFICATION A VIOLATION OF HUMAN RIGHTS’:

Munir A Malik, who has been appointed as ‘Amicus’ (friend of the court) in the case, stated that right to contest in elections is a fundamental right. Therefore, he added, Article 62 and 63 should be read in a manner wherein fundamental rights of any person should not be infringed.

The clauses under Article 63 are distributed into two parts ─ the first part relating to continued mistakes and the second to past mistakes in conduct, Malik explained.

He noted that after the 18th Amendment, changes were made to the clauses under Article 63.

“Before the 18th Amendment, past mistakes in conduct would result in disqualification for life,” he said.

Malik said that there are no differences between Article 62 and Article 63; adding that in the latter, under the 18 Amendment, the period of disqualification was changed to last five years.

“When the court disqualifies a person under Article 62, it is a declaration by the court, not a sentence,” Justice Sheikh Azmat observed. “What will the effect of Article 62(1)(f) be in such a case?”

“No trial can be conducted on writ of quo warranto,” Malik told the judge. “We will have to see for how long curbs to contest elections apply on disqualified individuals.”

Malik also stated that time duration of disqualification is mentioned in Article 63 of the Constitution, which says that MPAs will be disqualified for five years.

PREVIOUS HEARING:

The court had summoned both Nawaz and Tareen on Tuesday, however, only the PTI leader showed up in court.

During Tuesday’s hearing, neither Nawaz nor any counsel representing him had appeared before the bench.

“If Nawaz doesn’t want to come then that’s his choice,” CJP Nisar had remarked, adding that an ex-parte decision will be made in case he doesn’t show up.

“A one-sided ruling is also based on merit,” he had remarked.

The court then issued another notice to Nawaz to appear in court on Wednesday or be represented through a counsel. Later on Tuesday evening, Nawaz Sharif had decided that Advocate Azam Tarrar will represent him in court in Wednesday’s hearing.

During the hearing, the CJP had remarked: “We want everyone affected [by the article] to come to court and become part of the case — this is why we issued notices to Nawaz Sharif and Jahangir Tareen so that they have no complaints afterwards.”

“Whether they come or not [for the proceedings] is up to them,” Justice Nisar added.

The court had also declared senior advocates Muneer A Malik and Barrister Ali Zafar as amicus curiae (friends of the court), whereby they will assist the bench in the case.

The SC had also issued a public notice asking anyone who will potentially be affected in the case to approach the apex court to be heard otherwise ex-parte proceedings would take place.

It added that the larger bench is determining the duration of any elected member’s disqualification according to the constitution or relevant election laws.

SADIQ AND AMEEN:

Political and legal experts believe that the outcome of the case will have a great impact on the country’s future politics as it will decide the political future and fate of a number of politicians, including Nawaz and Tareen.

On December 15, last year, the Supreme Court had disqualified Tareen for failing to declare an offshore company and a foreign property in his election nomination papers.

Similarly, then-prime minister Nawaz Sharif was disqualified on July 28, 2017, for concealing in his nomination papers the receivable income from his son’s company in UAE.

Hearing a separate matter on January 26, the chief justice had remarked that they have to decide the length of disqualification per Article (62)(1)(f) — whether it will be a year, five years or lifelong.

“We will begin hearing petitions on the subject from January 30,” he remarked, adding that the larger bench’s decision on the matter will apply in the future.

Taking up a case of the article’s interpretation earlier, then-chief justice Anwar Zaheer Jamali had observed how the disqualified on the basis of articles 62 and 63 could be forever as a person could reform his or herself and then be considered qualified as per the law.

Article 62(1)(f) says: “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless […] he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”

The article, however, does not specify any period after which a person, who is declared disqualified under Article 62, can be eligible to contest elections of the parliament.

The court’s verdict will help end the controversy once and for all over the quantum of punishment by answering whether the disqualification of lawmakers should be for life or a specific time.