Title: 'Encroachments' made into Constitution, says CJP Isa as SC hears disqualification case
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Chief Justice of Pakistan (CJP) Qazi Faez Isa said on Friday that the "original Constitution" had greater sanctity and lamented "encroachments" made into the country's bill of rights over the years.
The remarks were made by the CJP as a seven-member larger bench of the apex court resumed hearing a set of petitions to determine the disqualification period of lawmakers. The bench is presided by CJP Qazi Faez Isa and comprises Justice Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali.
The inconsistency between court decisions and parliamentary legislation regarding the duration of disqualification under Article 62(1)f has prompted the apex court to intervene and determine whether the disqualification of a lawmaker should be for a lifetime or five years stipulated in the Election Act.
The disqualification conundrum stems from the addition of Article 62(1)f to the Constitution by former military ruler Gen Ziaul Haq. However, the issue gained prominence when a larger bench of the Supreme Court disqualified former prime minister Nawaz Sharif for life in the Panama Papers case.
In June last year, parliament introduced an amendment to Section 232 of the Election Act, setting the period of disqualification to five years under Article 62(1)(f). This legislative move adds a layer of complexity to the matter that the Supreme Court is now set to unravel.
As the hearing commenced today, Jahangir Tareen's counsel Advocate Makhdoom Ali Khan was called to the rostrum. He began his arguments by stating that the Samiullah Baloch case led to a disconnect between Article 62 and 63 and added that two different considerations prevail as the language of Article 63 is different from that of Article 62.
Justice Shah observed that in the Samiullah case, the declaration was obvious but the duration of disqualification remained unclear.
When Justice Mandokhail asked if a civil court could issue a declaration of disqualification, the counsel said it could not. He further added that the Constitution keeps the issue of disqualification and qualification separate.
Justice Mazhar then asked if Article 62 applies to pre-election, post-election or any other time. The advocate replied Article 62 is only applicable at the time of elections while Article 63 can be applied at any time it is deemed fit to be used.
CJP Isa then interjected that the constitutional history of the country was being disregarded.
“We are disregarding the fact why these amendments were brought into the Constitution, we are disregarding the fact that original Constitution has a greater sanctity than amendments brought unless there are such amendments which enable to serve the people better,” said the CJP.
He further observed that successive "encroachment" was made into Pakistan's Constitution and noted that despite advertisements given in newspapers, no political party has come forth stating that this was a good interpretation of the Constitution.
Tareen's counsel then stated that the parliament did not mention that the declaration would be forever in the 18th amendment.
Published Date: 05-Jan-2024
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