ISLAMABAD: Referring to Article 5 of the Constitution, Chief Justice of Pakistan (CJP) Mian Saqib Nisar has observed that ridiculing the judiciary is like disobeying the Constitution of Pakistan.
“Loyalty to the state means loyalty to its basic organs including judiciary. Likewise, breaching of loyalty with state institutions will be disobedience to the Constitution,” the CJP said this on Wednesday while heading a three-judge bench that was hearing different petitions against the Elections Act 2017.
The Supreme Court on January 1 declared as maintainable the petitions challenging the act, a part of which has paved the way for the deposed premier Nawaz Sharif to head his party after his disqualification on July 28, 2017 in Panamagate case.
On Wednesday, the bench laid emphasis on Article 5 which says: “Loyalty to the state is the basic duty of every citizen. (2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”
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“If Article 204, which empowers the court to initiate contempt proceedings, be read with Article 5 then the court has unlimited power to punish the person, who is carrying out smear campaign against the judiciary,” the CJP said.
He, however, noted that the court will not react to criticism as the people of Pakistan are strength of the judiciary and are the best judge and see everything. “We will restore confidence of the people on judiciary and we will not react over criticism as the people of Pakistan are the best judge,” he said.
Another member of the judge, Justice Ijazul Ahsan, said attacking the constitutional institution also falls under the purview of Article 5 of the Constitution. After the court’s hearing on Wednesday, the ruling Pakistan Muslim League-Nawaz (PML-N) lawyers were wondering why the bench has laid so much emphasis on Article 5 in this case.
Earlier, the Pakistan People’s Party’s (PPP) counsel Latif Khosa pleaded the case very emotionally. He contended that the judges are a representation of the people of Pakistan and it is high treason to target the judiciary and the army.
Khosa said Sharif submitted forged documents in Panamagate case but the judiciary showed restraint in this matter otherwise he could have been sent behind bar directly.
He also read out some portions of the SC’s judgment regarding the dismissal of Sharif’s review petition against his disqualification. Justice Umar Ata Bandial wondered why that part of the judgment was not highlighted in the press. Khosa said media is completely controlled by Sharif, who, he said, was rightly referred to by the court as ‘Godfather’ and ‘Sicilian Mafia’.
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The counsel contended that in view of the Election Act 2017, Nawaz Sharif being party head can even remove the prime minister. The CJP asked stance of the incumbent Prime Minister Shahid Khaqan Abbasi on the ongoing criticism of judiciary.
Khosa said PM Abbasi believes that Sharif is his prime minister and the court’s judgment has no worth. “The spirit of the Constitution says the dishonest cannot become head of a party,” he said, adding that Nawaz’s attack on judiciary is rebellion with the state.
The CJP also asked the Additional Attorney General Pakistan (AAGP) Waqar Rana to submit the complete debate on the Election Act. The bench also observed that there is a new trend in England where the judges are saying they can respond to the criticism of their judgment in the public.
Amicus curiae opposed lifelong disqualification
During the hearing of the matter related to the interpretation of Article 62 (1) (f) of the Constitution, Barrister Syed Ali Zafar as amicus curiae opposed lifelong disqualification under the said article.
He said in order to arrive at a fair and just conclusion of the journey discovering the silence of the Constitution, the Constitution has to be interpreted according to the principles of ‘structural modality’ which is also known as the ‘rule of harmony’, ‘rule of completeness’ or ‘rule of exhaustiveness”.
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Under this principle, the entire Constitution has to be read together and it has to be seen how Constitution deals with similar situations as no particular Article of the Constitution lives in a vacuum, rather each article relies and builds upon other provisions of the Constitution, he said.
Barrister Zafar said there are three possible time periods which can be laid down by the court in this case. One extreme is that a person is disqualified for life while the other extreme is that the person, who is not honest and Amin, is disqualified only for the term of the parliament.
According to Zafar, both the extremes are not correct as under Article 62, the SC has been given the jurisdiction by the parliament to determine the period of disqualification which cannot be less than five years and may extend to the time period for which the person could be sentenced.
“If there is to be a conviction in this way, no conflict arises between Article 62 and 63 and this interpretation will be according to the principles of fairness, proportionality and logic, which is the soul of law. In this way, there is no conflict between Article 62 and Article 63,” he said.
Elaborating the point, he relied on Nawaz Sharif’s earlier case and various other judgments of the Supreme Court, submitting that the Constitution is a document given by the people, it is a living document, a living organism and has even been compared with a living tree which grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people.
“Based on this principle, a wider construction has to be given to the various provisions in order to meet the changing circumstances with the passage of time,” he said.
Calling it a doctrine of ‘progressive interpretation’, he relied on the famous words of Justice Frankfurter of the US Supreme Court that “The stuff of the Constitution differs profoundly from ordinary law. The reason is that the Constitution derives authority from the general will of the people.”
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Barrister Zafar said according to the Constitution, lawmaking is with the parliament and judges do not make laws. Relying on the decision of Justice Nisar in an earlier case, he said it has now been established that there can be no judicial aggrandisement of power at the expense of the elected representatives of the people and judges cannot act or take away or modify the latter of the law.
He then gave six modalities of interpretation which the court can use to interpret Articles 62 and 63 including historical, textural, ethical and potential doctrine but stressed that the most important modality used when the Constitution is silent is the ‘structural modality’.
Explaining in detail these two articles, he argued that there is no difference practically in Articles 62 and 63 and both are self-executory and contain within them the rights of the people of Pakistan and the fundamental rights of those who want to participate in elections.
Zafar said applying the structural modality, since both Articles 62 and 63 deals with the same situation, both have to be read together. If a person is convicted under Article 63(1)(h) for an offence of moral turpitude and sentenced to the maximum sentence of 7 years, and then a further period of 5 years has passed after his release [making a total period of 12 years], then he is entitled to contest elections.
However, at the same time, such a person once convicted would not be honest and amin. If Article 62(1)(f) is interpreted to mean that the disqualification of declaration applies for life, then the person, in spite of the 15 years period having passed, would still be disqualified.
This, according to Zafar, is a direct conflict and needed to be harmonised according to the structural modality otherwise Article 63(1)(h) would become redundant.
He also relied on various similar Articles of 62 and 63 to state that many articles were complementary to each other and had to be interpreted in a systematic manner.
He said the parliament deliberately did not give any time in Article 62 and reposed its trust in the courts to determine the disqualification period within the minimum of 5 years and the maximum of the sentence which could be imposed upon him had he been convicted for an offence.
He said =some persons, like Nawaz Sharif, who had been disqualified under Article 62 for an offence which under Section 78 of ROPA carries a sentence of up to 3 years; the period of disqualification for such a person would be a total of 3 years of the conviction and a further 5 years, therefore totaling to a period of disqualification lasting 8 years from the date of declaration by a court.
“In respect of those having fake degrees, they were disqualified for a period of sentence that could be given under the Pakistan Penal Code of up to 7 years plus a further 5 years. So the total period of disqualification will be 12 years,” he added.