Parliament bound to obey Constitution: CJP

SC’s five-judge bench begins hearing to determine period of ineligibility


Hasnaat Malik January 31, 2018
Chief Justice of Pakistan Mian Saqib Nisar. PHOTO: EXPRESS/FILE

ISLAMABAD: Chief Justice of Pakistan Mian Saqib Nisar has observed that parliament is bound to obey the Constitution.

“We have said on a number of occasions that parliament is supreme, but it is bound to obey the Constitution. So ultimately, the Constitution is supreme,” said the chief justice while hearing a matter related to the determination of the duration of disqualification under Article 62(1)(f) of the Constitution.

The five-judge larger bench, headed by the CJP himself and comprising Justice Azmat Saeed Sheikh, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Sajjad Ali Shah, started hearing a number of cases filed by parliamentarians disqualified under Article 62(1)(f).

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The chief justice called it the fundamental right of any citizen to contest elections, saying the proceedings were relevant to everyone.

“This is the key issue… we are issuing public notices to all affected people that they may join the court proceedings. We also issued notices to former prime minister Nawaz Sharif in case he wants to become a party to the matter. However, if nobody will appear, we will proceed ex parte,” the CJP said.

Later, on the CJP’s instructions, the SC office issued a notification for information of the general public that cases involving interpretation and determination of the question of temporary or permanent bar to contest elections after incurring of disqualification under any provision of the Constitution or the election laws have been fixed for hearing before the five-member bench.

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“Thus, any person, including any voter or member or leader of any political party who may consider it likely to be affected by the decision of the aforesaid cases in any way, may approach the Supreme Court if so advised in his own interest or in the public interest to seek permission to be heard in the matter,” says the notification.

The SC office has also clarified that this publication may be treated as court notice to all concerned for all intents and purposes; and if no one appears, the matter will be decided without them needing to attend.

According to sources, a senior PML-N lawyer will appear before the bench on Wednesday to seek two weeks to engage a counsel.

The bench appointed Munir A Malik and Ali Zafar as amicus curiae in the matter. Earlier, Makhdoom Ali Khan recused himself to assist the larger bench as amicus curiae.

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During the hearing on Tuesday, the bench wondered why parliament did not amend Article 62(1)(f) of the Constitution at the time the 18th amendment was passed in 2010.

“We have been told that after the 18th constitutional amendment, there is a new Constitution, but the lawmakers did not amend the said article. Perhaps they were not aware of the consequences,” said a member of the bench.

Another judge, Justice Sheikh, questioned whether parliamentarians lack the desire or courage to amend the said provisions of the Constitution and are relying on the Supreme Court to do so. He also wondered how declaration can become ineffective after five years.

Justice Sheikh observed there are three ways to disqualify parliamentarians – through tribunal under Article 225 of the Constitution; through conviction by a court of law in any matter; and through quo warranto wherein MPAs can be directly disqualified by the Supreme Court and high court.

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Justice Ahsan said there was ample opportunity for parliamentarians to amend the Constitution but they did not do so. He also questioned how the court declaration against any parliamentarian could be ineffective after a specific time.

Babar Awan, counsel for one petitioner, contended that disqualification under Article 62(1)(f) of the Constitution is perpetual, adding that there are four offences, like money laundering, wherein parliamentarian should be disqualified lifelong.

Interestingly, Awan, the leading legal adviser for the PTI, is opposing the stance of a key party leader who believes that disqualification under the said article is time-specific.

Awan stated that if the court wanted to set time duration of disqualification, then 17 judges should hear the matter “because there are judgments of larger benches on similar matters”.

However, another senior counsel, Iftikhar Gilani, opposed the lifetime disqualification, adding that if the time was not mentioned, how disqualification could be assumed to be lifelong.

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According to Tariq Mahmood, who was representing four parliamentarians, if a returning officer rejects anyone’s nomination papers on any ground, it should not be considered as a court's declaration under Article 62(1)(f) of the Constitution because he is conducting summary trial, wherein the evidence could not be recorded to prove the facts.

Justice Ahsan, however, mentioned a legal obligation that parliamentarian should offer true facts about their assets and liabilities.

Mahmood stated that an RO could not be declared as a court of law. He also objected to former chief justice Iftikhar Muhammad Chaudhry's judgments on the issue.

The hearing will resume today (Wednesday). The bench observed it would conclude hearings this week.

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