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ISLAMABAD: A seven-judge Supreme Court is set to determine, once and for all, whether electoral disqualification for life under Article 62(1)(f) of the constitution as commanded by the court earlier will prevail or the Elections Act 2017 that later reduced the ineligibility to five years.
Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the larger bench also consisting of Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali will commence the hearing on Tuesday (today).
Earlier on Dec 11, the court had referred an electoral disqualification dispute to the three-judge committee formed under the Supreme Court (Practice and Procedure) Act 2023 to constitute a larger bench for deciding the matter for all times to come.
The matter was referred for final adjudication in view of a legal dilemma that may arise in view of the SC’s April 13, 2018, judgement in the Samiullah Balcoh case when it shut the doors of parliament permanently for politicians disqualified under Article 62(1)(f) through a unanimous verdict that such ineligibility was for life.
Seven-judge bench will decide whether duration of ineligibility is five years, or life
But on June 26, 2023, an amendment was inserted in the Elections Act 2017 through Section 232(2) specifying that the period of electoral disqualification will be for five years, and not for life.
Since the amendment to the Election Act has not been challenged, this matter may create confusion in the upcoming elections whether to rely on the SC judgement or the Elections Act.
Such a situation is not conducive for democracy, the CJP had observed then during the hearing.
The controversy surfaced when a three-judge bench — comprising the CJP, Justice Amin-ud-Din Khan and Justice Athar Minallah — was hearing an election dispute instituted by Sardar Confcius Imam Qaisarani against Sardar Mir Bashah Khan Qaisarani.
The appeals pertain to the disqualification of candidates who wanted to contest elections. One appeal was about a provincial assembly seat while the other related to a National Assembly seat. Though the parties were different, the issue was the same.
The general elections that were held in 2008 required candidates to have a minimum graduation qualification. Some candidates made mis-declarations in their nomination papers, some produced degrees from unrecognised institutions and yet others submitted fake degrees to show eligibility for participation in the elections.
According to the last order, the apex court had disqualified all such candidates with some even facing criminal prosecution. Since a criminal appeal was pending adjudication before a high court, the court decided to intervene only in the matter concerning the question of disqualification. The issue of disqualification cropped up when the court noted that Sardar Mir Badshah Khan Qaisarani, who had filed nomination papers from NA-189 and PP-240 Taunsa (Dera Ghazi Khan) constituencies during the 2008 and 2018 elections, respectively, was disqualified for producing a fake degree. His appeal is still pending before the Lahore High Court.
During the hearing, the SC bench had made it clear that the pendency of the present case should not be used as a tool or a pretext to delay the Feb 8, 2024 general elections, either by the Election Commission of Pakistan or any other entity.
The court then even went on to caution that those airing apprehensions regarding delay in the elections will be exposing them to the contempt of court charges also affirming that the polls will be conducted positively on Feb 8. The court had also sought assistance from Attorney General for Pakistan Mansoor Usman Awan, provincial advocate generals as well as ECP and ordered for the publication of a public notice through prominent newspapers of English and Urdu languages so that anybody or political parties become party to the case if they wish so.
Published in Dawn, January 2nd, 2024
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