Pakistan Supreme Court Ends Lifetime Disqualification Of Politicians

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The Supreme Court on Monday ruled that politicians cannot be disqualified for life under Article 62(1)(F).

This was decided by a seven-member bench of the Supreme Court (SC) led by Chief Justice of Pakistan Qazi Faez Isa. The verdict was passed with six judges in favour and one judge, Justice Yahya Afridi, dissenting.

The verdict will immediately benefit deposed prime minister Nawaz Sharif, who will contest next month's elections and possibly stand a chance to be elected as the country's prime minister for a record fourth time. It will also benefit Istehkam-e-Pakistan Party (IPP) Chairman Jahangir Tareen in contesting the upcoming polls.

The Supreme Court had reserved its judgement in the case at the last hearing on January 5. On Monday afternoon, the court reconvened and read out its judgement.

The court overruled the judgement of the court in Samiullah Baloch's case.

The verdict further noted that Article 62(1)(F) cannot be read in isolation from the Constitution.

The court further ruled that contesting elections is a fundamental right of a citizen.

Justice Yahya Afridi, who dissented with the majority verdict, observed that he believed the court's verdict in Baloch's case to be correct.

Earlier, during the hearing of the case, Chief Justice Isa had remarked on how the wisdom of five men could prevail over the wisdom of 342 members of Parliament. Parliament's decision should not be looked down upon. Where does it say in the Constitution that the penalty of disqualification shall be for life; it should not be that when you are in the mood, disqualification is for life, and when you are not in the mood, you end disqualification.

After the verdict, the Attorney General of Pakistan spoke to the media and said that all declarations under Article 184(3) and 199 are in nullity now because neither the Supreme Court under Article 184(3) nor the High Courts under Article 199 are competent courts to give such a declaration while the law has not specified which courts would have the jurisdiction to hear such cases.

 

Saithan

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Wouldn't such a verdict not be in the hands of constitutional courts ?

I mean being banished from politics for life in itself is contradictory because it's politics, people elect you for your point of view. Breaking the laws would mean you'd be punished, but after serving, you'd be eligible for running in politics again.

However this does bring back the issue of what kind of punishment that'll keep politicians from running for office, which ultimately is death.
 

Saiyan0321

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Wouldn't such a verdict not be in the hands of constitutional courts ?

I mean being banished from politics for life in itself is contradictory because it's politics, people elect you for your point of view. Breaking the laws would mean you'd be punished, but after serving, you'd be eligible for running in politics again.

However this does bring back the issue of what kind of punishment that'll keep politicians from running for office, which ultimately is death.

The Supreme Court is the Constitutional Court and the ultimate interpreters of the Constitution and you are quite right.
Disqualification has taken central stage in legal arguments since the landmark judgment of Imran Khan vs Nawaz Sharif judgment during the time of Saqib Nisar. Now first of all it is important to understand that the Constitution is not a penal document which means that it can contain the structural capacity of the state and its people but it doesn’t contain provisions that penalize any abrogation despite having penal provisions most notably being Article 6 which is the treasonous clause which defines treason but doesn’t include a penalty because its not a penal document. Disqualification, similar to Article6, mentions the conditions where an individual could be disqualified but does not mention the procedure nor the period for disqualification. Now ideally the Constitutional evolution between Parent Litigation aka the constitution and subsidiary litigation aka the treason act could have laid down the foundation especially when we talk about the Musharraf treason case but the Courts, in their hesitation to penalize those that held the Constitution hostage, blocked the legal evolution in this regard.

So the larger issue of disqualification was proposed to be lifetime was based entirely on Supreme Court interpretation however this dissatisfied not only politicians but many lawyers as well as justices of the Supreme Court and when Saqib Nisar retired, the Court was looking for an opportunity to constitutionally stabilize this anomaly but for a successor court to immediately review such a landmark judgment of the predecessor was not only against the norms of legal ethics but would call into dispute the stability of the Courts themselves as well as set a precedent that a change in Chief Justice is all this needed to break established precedents. The Courts would have opened a floodgates of review litigations on past precedents every time the Justice changed. During this period the National Assembly under the government of PDM coalition, amended the election act 2017 to include a timeframe for disqualification which would be five years. The Courts now had a reason to review the judgment of Saqib Nisar and they did. Now the issue was timing. PMLN is being favoured and PTI is being suppressed. Despite the fact that this judgment favours Imran as well, since he cant be disqualified for lifetime, the timing calls to question the intent. The establishment basically told the courts, We need Nawaz to run the election, you have a constitutional lacuna that needs to be corrected, looks our interests align and that is what happened. Lifetime disqualification was never going to last especially when parliament had passed a legislation on it because now the issue was whether the Court should declare the punishment by parliament void and in doing so basically make the Supreme Court the legislative body because this act would set the precedent that Supreme Court could make laws and these laws would take precedence over parliamentary laws. You see previously the argument was that there is now law nor time frame so we have set the limit and in doing so expanded the constitutional evolution but now there is a law. Do you declare the law to be void and your interpretation to be superior because that would open another flood gate of litigation and basically make the parliament defunct? So the courts removed the lacuna. The dissenting issue that one justice raised that Constitutional amendment requires 2/3rd majority but by passing subsidiary legislations with majority and having them influence the constitution, then that would change the nature of the constitution form rigid to flexible aka requiring just a majority and it would create disinterest for parties to attempt to reach the 2/3rd majority needed. They would just keep passing laws. This was a tactic often used by dictators and then by PTI who relied on ordinances to bypass the parliament and was later on adopted by PDM…
 

Saithan

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Doesn't the Parliaments disregard and disrespect not undermine the rule of law.

As I see it.

The Supreme Court itself is contributing to instability by not having firm stance on constitutional interpretations.

Is there a division in the supreme court that's rooted in Cabal ?
 

Saiyan0321

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Doesn't the Parliaments disregard and disrespect not undermine the rule of law.

As I see it.

The Supreme Court itself is contributing to instability by not having firm stance on constitutional interpretations.

Is there a division in the supreme court that's rooted in Cabal ?
Whilst the Supreme Court is part of the Establishment but so are the electable candidates that sit in the parliament so the cabal has members everywhere.
Pakistan's constitutional set up functions on the trichotomy of power concept which means that rather than a single supreme instituion, power is divided into three institution aka the Judiciary, the Executive and the legislative. All these institutions are independent but act as restraints on each other because the concept is that a single institution towering over others would create authoritarianism. For example the court can review or set aside laws that can contravene Fundamental Rights thus acting as a limit on the power of the parliament or they can review the actions of state departments if they are authoritative or illegal thus acting as the limit on the Executive. It is not as much as undermine the rule of law as it is to limit the authority of a single institution but it enters the sphere you have mentioned when Courts become judicial activists.

Yes they are and they always played this role because judges play an important role in the establishment. If the military had not created the establishment then Pakistan may have witnessed pure constitutional evolution but due to interference pakistan witnesses garbled constitutional evolution because in addition to the normal evolution of the Constitution, you have forced interpretations for example the recent absolute disregard of the Supreme Court to the established principle of "procedural technicalities are always subordinate to substantial justice/fundamental rights of public at large and hence cannot prevail over such rights” in the PTI electoral symbol case.
 

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