SC tells all politicians struck by Article 62 to join case

–CJP warns of ex-parte decision as it issues second notice to deposed PM Nawaz for appearance in court

–Asks petitioner’s counsel whether Sadiq and Ameen should be considered as one trait or two separate ones

ISLAMABAD: The Supreme Court (SC) directed deposed prime minister Nawaz Sharif to appear before the bench on Wednesday, as it took up the hearing of 13 petitions pertaining to Article 62 (1)(f) on Tuesday.

The case, which is expected to have a substantial effect on disqualified politicians, including Nawaz and former Pakistan Tehreek-e-Insaf (PTI) secretary general Jahangir Tareen, is being heard to determine the duration of the disqualification.

A five-member larger bench, headed by Chief Justice Mian Saqib Nisar and comprising Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah, heard 13 petitions filed by disqualified legislators.

Though the over dozen petitioners are lawmakers disqualified for possessing fake degrees, the case has ramifications for Nawaz as well as Tareen — both of whom were disqualified from parliament for violating Article 62(1)(f).

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

As the hearing went underway, the bench was informed that neither Nawaz nor any counsel representing him is present in court.

“If Nawaz doesn’t want to come then that’s his choice,” CJP Nisar 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 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 decided that Azam Tarrar Advocate will represent him in court in Wednesday’s hearing.

Advocate Babar Awan, representing a petitioner Samiullah Baloch, suggested that the court issue a public notice for lawmakers affected by the article to appear in court for the case’s hearings. Another option, he said, was to issue a notice to the attorney general.

“The decision on this case will affect the entire nation,” said Awan.

To this, the chief justice replied that the court wants to protect the rights of the people. “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,” he said.

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

Awan argued that the bench has to refer to parliament even if a comma has to be changed in the constitution as the body makes or changes laws.

The chief justice responded that the parliament is beholden to the constitution as well.

The court 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 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’S INTERPRETATION DEBATED:

Contemplating over the article’s interpretation and implementation, the CJP asked whether Sadiq (truthful) and Ameen (righteous) should be considered as one trait or two separate ones. Justice Ata questioned whether the article should be applied to lawmakers representing non-Muslim minorities.

“A parliamentarian from a [non-Muslim] minority should also possess good character,” Advocate Awan insisted.

Chief Justice Nisar said that a lawmaker could be disqualified for two reasons: for violating a law or for violating the constitution. Awan argued that a parliamentarian’s membership could also be nullified for a lack of character.

Responding to Awan’s argument, Justice Saeed said that the right to determine whether a candidate for an assembly seat rested with the returning officers (RO). However, both Awan and the bench agreed that the constitution did not provide any criteria to determine whether a candidate’s character makes them eligible to contest for an assembly seat.

The constitution also did not specify whether a lawmaker could be disqualified for holding views that oppose the ideology of Pakistan, the court noted, though Awan insisted that they should be disqualified.

Justice Ijaz, however, pointed out that the 18th Amendment included the terms of a parliamentarian’s disqualification.

Awan urged the court to also take the recent Hudaibiya reference verdict by the SC into consideration because it “negated the law”.

The SC recently ruled against an appeal to reopen the Hudaibiya Mills reference, noting that it was long past its expiry date and was being dragged in different courts to pressurise the Sharif family.

Debating the period of disqualification, Awan said that that the bar council does not renew the license of a judge who is expelled for misconduct.

“Be clear about what you are implying,” the CJP told him. “Should a parliamentarian be disqualified for life or for one term?”

He then wondered whether it was legally allowed to interpret the Constitution according to one’s own understanding.

Discussing the applicability of Article 62 of the Constitution, Awan lamented that the parliament had never thought of amending the article. Chief Justice Nisar suggested that the assembly might not have thought of it because the members agreed upon the article.

The bench then told Awan that the court was only debating the time-period of a lawmaker’s disqualification.

Quoting a Quranic verse, Awan claimed that the disqualification as a result of Article 62(1)(f) should apply for life. The chief justice then asked any other lawyer present in the court who supported Awan’s interpretation to stand up but no one did.

“Do you also oppose lifetime disqualification?” Justice Nisar asked Tareen’s counsel, who confirmed that he did not support lifetime disqualification.

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.