ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa stated on Monday that judges are not qualified to decide on ambiguous moral issues or to separate virtue from vice or morality and then carefully weigh the two.
The CJP noted that human traits and attributes rarely stay constant, often changing even within a single day.
These remarks were included in a lengthy ruling that provided an explanation for the majority vote of six to one on January 8, 2024, to overturn the 2018 ruling that had permanently barred lawmakers disqualified under Article 62(1)(f) of the Constitution for not having been “honest and righteous” from serving in parliament.
The majority ruling had clarified that as Article 62(1)(f) did not self-execute, the interpretation of the provision imposing a life ban, as adopted in the 2018 Samiullah Baloch case, was outside the purview of the article.
The absence of a judicial specification in Article 62(1)(f) declarations is highlighted by Justice Mansoor’s note.
After that, a number of appeals filed by candidates who had been disqualified from running for office or had had their nomination papers denied were heard by the seven-judge court.
Now, in the full ruling, the CJP noted that an opinion can only be voiced with some confidence once an existence has been lived out and mortality has intervened, and even then, only to limit what was known about a person in the public domain.
According to the CJP, the good character of an intensely selfless person will be as unidentified as the bad character of an undiscovered criminal. It further stated that while someone lacking the virtues and qualities listed in Article 62(1)(d), (e), and (f) may eventually acquire them, those who already possess them may eventually lose them. Furthermore, it matters who makes the decisions; a judge may think someone is morally upright, while another judge may think otherwise.
The CJP noted that matters described in Article 62(1) clauses (d), (e), and (f) are intrinsically subjective and subject to change. It further added that earthly courts should decide on matters that are observable, determinable, and unambiguously stated by law, thus avoiding the realm of heaven.
The Samiullah Baloch case ruling did not take into account the fact that Article 62(1)(f) fails to define the court of law that must issue the declaration, the process by which the declaration must be made, or the duration of the disqualification. It was also not taken into consideration if Article 62(1)’s sections (d), (e), and (f) were purely aspirational.
Law courts deal with concrete ideas; therefore, in the event that a statute or a provision of the constitution is ambiguous, it must be construed in accordance with well-established construction principles, thereby favoring the citizen. The CJP clarified that courts ought to crystallize ambiguities rather than cling to them.
The courts do not automatically acquire jurisdiction and authority when the Constitution leaves a topic unclear or uncertain. Furthermore, judges would be left to make decisions based on their own personal preferences and differing moral convictions in the absence of an objective standard.
Permitting this would be detrimental to a well-defined constitutional and legal framework, undermining the essential rights to a fair trial and due process as outlined in Article 10A of the Constitution. The ruling clarified that applying differing standards would also contradict equal treatment, which is required by Article 25(1) of the Constitution.
An additional point
In the meantime, Justice Syed Mansoor Ali Shah noted in a separate note that neither the Constitution itself nor any other statute designates the court of law qualified to make the declaration referred to in Article 62(1)(f) or outlines the process for making such a declaration.
It is not based on any statutory or constitutional provision; rather, it amounts to legislating and perusing into the Constitution, making it “plainly and palpably wrong.” This was decided in the Sami Ullah Baloch case. The decision stated that the statement made by a judge of civil jurisdiction about breach of particular civil rights and obligations is an acknowledgment defined by Article 62(1)(f) and that such an assertion has a lifelong eliminating effect.
Justice Shah noted, “Therefore, we hold that the declaration of law made therein is incorrect and is therefore overruled, with due regard to the learned justices who delivered the judgment in the Samiullah Baloch case.”
SOURCE: DAWN NEWS
