HAMZA RASHEED KHAN vs ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Progressive interpretation, doctr

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HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Progressive interpretation, doctrine of---Scope---While interpreting constitutional provisions, the judicial approach should be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid---Courts are to interpret the constitutional provisions broadly so that they may meet the requirements of an ever-changing society---Doctrine of progressive interpretation, which is also referred to as the doctrine of living constitution, is one of the means by which the Constitution adapts to the changes in society---What this doctrine stipulates is that the meaning of the constitutional provisions is not frozen in time but carries in it the flexibility to continuously adapt to new conditions---This doctrine is premised on the belief that a constitution must be relevant to the society it governs, which inevitably evolves over time---With their progressive approach, the courts look to the purpose or intent behind a constitutional provision to guide its application in modern contexts---It is a necessary tool for ensuring the Constitution remains relevant and capable of protecting the rights of citizens and the governmental structure in changing societal contexts, ensuring the Constitution remains a living document that evolves along side societal changes---It is, however, important to underline that there is a marked difference between progressive interpretation and amendment of the Constitution---Courts cannot, under the disguise of progressive interpretation, amend the Constitution and read that into it which is not enshrined in any provision of the Constitution---Progressive interpretation is rooted in constitutional text viewed through a lens of contemporary social, economic and political values but any interpretation that does not have any textual mooring or is not entrenched in or flows from any constitutional provision passes for a constitutional amendment by unwarranted reading into the Constitution and is beyond the permissible scope of the judicial act of interpreting the Constitution. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE 'Self-executory' and 'non-self-executory' provisions of the Constitution---Scope and distinction---Constitution of Pakistan contains extensive provisions on certain matters that operate directly upon the rights and obligations of people and also delineates mostly the functions of different constitutional bodies and offices in sufficient details to make them operative per se---Therefore, it may be presumed that all provisions of the Constitution are self-executory unless there is an express provision or a necessary implication that requires or envisages a legislative act to enforce the constitutional mandate---As a constitutional provision is self-executory if it does not require legislation to put it into effect, the question of whether a constitutional provision is self-executory is largely determined by whether legislation is a necessary prerequisite to the operation of the provision---And the insurmountable difficulties in giving effect to a constitutional provision without legislation afford the strongest reason for concluding that the provision is not self-executory. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE arts. 10a, 17(2), 62(1)(f), 184(3) & 199---Elections act (XXXIII of 2017), S. 154---Disqualification under article 62(1)(f) of the Constitution---Question as to which Court is competent to make the declaration mentioned in article 62(1)(f) of the Constitution?; who has the locus standi to seek such a declaration?; what is the procedure for making such a declaration?; and, what is the standard of proof required for making such declaration?---Held, that the Supreme Court, the High Courts, the Election Tribunals and the civil courts do not have the jurisdiction to make the declaration mentioned in article 62(1)(f) of the Constitution---Not only these courts, but also no other court of law, at present, has such jurisdiction---as per the existing legal position, no person has locus standi to seek against an other person the declaration mentioned in article 62(1)(f)---Though no court of law is, at present, competent to make the declaration mentioned in article 62(1)(f) nor is there any law that prescribes the procedure for making such declaration, but whenever any law confers the right on any person to seek, and the jurisdiction on any court of law to make, the said declaration, article 10a of the Constitution will definitely stand attracted to the proceedings conducted in exercise of that jurisdiction for the enforcement of that right---Since any determination made in such proceedings shall have the effect of curtailing the fundamental right of a person in respect of whom such declaration is sought, the right to a fair trial and due process guaranteed by article 10a shall also be available to such person---Declaration that a person is not sagacious, righteous, non-profligate, honest and ameen is such that creates a serious stigma on the reputation of that person---Standard of proof in making such declaration should, therefore, not be a mere preponderance of probability applied generally in civil cases---Rather, the higher standard of 'clear and convincing proof' should be applied for making such declaration. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Harmonious interpretation of provisions---One of the most celebrated principles of constitutional interpretation is that a Constitution is to be read as an organic whole and its provisions, especially those closely related to each other, are to be harmoniously reconciled instead of making out inconsistencies between them---One constitutional provision cannot, unless expressly so provided, override the other nor can one be so construed as to destroy the other but rather both are to be construed harmoniously, each sustaining the other---Meaning and scope of an obscure provision is to be ascertained in light of that provision which manifests the intent of the constitution makers in unequivocal terms---Because the different parts of a Constitution are linked into a whole, i.e., the Constitution, and are not merely an unconnected bunch of isolated provisions; every provision is related to a systemic plan and contributes to the functioning of an integrated scheme. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE arts. 4, 10a, 17(2) 62(1)(f) & 175(2)---Elections act (XXXIII of 2017), S. 232(2)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Life time disqualification under article 62(1)(f) of the Constitution---Constitutionality---Interpretation of article 62(1)(f) of the Constitution---article 62(1)(f) of the Constitution is not a self-executory provision and is to be made operative through enacting a law that specifies the court of law which is competent to make the declaration mentioned in article 62(1)(f) and provides for the manner and procedure of making such declaration---Until such law is enacted, article 62(1)(f) only serves as a guideline for the voters in exercising their right to vote---Neither the Constitution nor any law specifies the court of law that is competent to make the declaration mentioned in article 62(1)(f) of the Constitution and provides for the manner and procedure of making such declaration---Decision given in the case reported as Sami Ullah Baloch v. abdul Karim Nausherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case") that the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations is a declaration mentioned in article 62(1)(f) and that such declaration has a lifelong disqualifying effect, is not based on any constitutional or statutory provision but rather amounts to legislating and reading into the Constitution and is therefore found to be 'plainly and palpably wrong'---Thus, such statement of law made in Sami Ullah Baloch case is not correct and is therefore overruled. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Vague provision, interpretation of---Courts of law deal with tangible concepts, and if a law or a constitutional provision is vague, it has to be interpreted as per well established rules of construction, in favour of the citizen---Courts should crystalize ambiguities and avoid leaning into them. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Interpreting laws in accordance with Islamic injunctions---While interpreting laws if more than one interpretations are possible, the courts should adopt that which is more consistent with the Islamic injunctions. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE art. 175(2)---Courts, jurisdiction of---Scope---any court, including the Supreme Court, cannot by a judicial order confer jurisdiction on itself or any other court, tribunal or authority---Power to confer jurisdiction is legislative in character; only the legislature possesses it---No court can create or enlarge its own jurisdiction or any other court's jurisdiction---Nor any court has any inherent or plenary jurisdiction---Because of the constitutional command in article 175(2) of the Constitution, the courts in Pakistan do not possess any inherent jurisdiction on the basis of some principles of common law, equity or good conscience and only have that jurisdiction which is conferred on them by the Constitution or by or under any law. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Legislative powers of the Parliament---Scope---Setting aside a judgment of the Supreme Court through legislation---Permissibility---Parliament can legislate on any matter it is authorized under the Constitution, but it cannot reverse or set aside the judgment of the Supreme Court---Even an express pronouncement in a statute, and that too, through a non-obstante clause, cannot render the decision of the Supreme Court non-binding---Such an action would constitute an attempt to reverse a judicial decision rendered in the exercise of judicial power, which lies beyond the legislative domain---However, it cannot be denied that the effect of a judicial decision can be nullified by legislative action---Legislature can alter even with retrospective effect, the law which formed the basis of the judicial decision; the provisions on which the decision of the Court was based on may be altered, so fundamentally that, the decision no longer remains applicable to the altered circumstances---More importantly, the vires of any such law cannot be questioned on the ground that it nullifies the judgment of the Court---However, the same may be questioned being violative of any of the provisions of the Constitution, and the Supreme Court is competent to examine the vires of a statute, if it has been enacted in derogation of any of the provisions of the Constitution. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE arts.62(1)(f) & 175---Elections act (XXXIII of 2017), S. 232(2)---Disqualifications for membershipof Majlis-e-Shoora (Parliament)---Life time disqualification under article 62(1)(f) of the Constitution---Constitutionality---Interpretation of article 62(1)(f) of the Constitution---Extent of lack of qualification of a member of the Parliament, as envisaged under article 62(1)(f) of the Constitution, is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force---Period of disqualification under article 62(1)(f) of the Constitution, as determined by the Supreme Court in the case reported as Sami Ullah Baloch v. abdul Karim Nousherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case"), would prevail over the five-years disqualification period for article 62(1)(f), as provided under section 232(2) of the Elections act, 2017---Therefore, the conclusion so drawn by the Supreme Court in the Sami Ullah Baloch caseis legally valid, hence affirmed. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE arts. 10a, 17 & 62(1)(f)---Elections act (XXXIII of 2017), S. 232(2)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Life time disqualification under article 62(1)(f) of the Constitution---Constitutionality---Interpretation of article 62(1)(f) of the Constitution---View taken in the case reported as Sami Ullah Baloch v. abdul Karim Nausherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case) and in all those cases in which the returning officers, election tribunals, the High Courts and the Supreme Court had issued declarations pursuant to article 62(1)(f) of the Constitution and held such disqualification to be permanent/life time are not sustainable---Parliament has enacted section 232(2) in the Elections act, 2017 stipulating that disqualification under article 62(1)(f) of the Constitution cannot exceed five years, and there is no need to examine its validity in the present case---Interpretation of article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said article and amounts to reading into the Constitution---Decision in the Sami Ullah Baloch case does not conform to the Constitution and is accordingly overruled. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE arts. 184(3) & 199---Judicial review---Scope---Neither the High Courts nor the Supreme Court can rewrite any law, much less the Constitution, nor can they insert anything therein---Constitution was carefully crafted by its framers and the domains of the Judiciary and that of the Legislature were kept separate---High Courts and the Supreme Court may strike down any law which is unconstitutional, but they are not empowered to legislate. Citation Name: 2024 PLD 1028 SUPREME-COURTBookmark this Case HAMZA RASHEED KHAN VS ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Stare decisis, doctrine of---Scope---When the previous decision is found to be 'plainly and palpably wrong', the doctrine of stare decisis does not prevent a court from overruling it---Where the decision of a court is not based upon some constitutional or statutory provision, the doctrine of stare decisis does not apply to such decision.

HAMZA RASHEED KHAN vs ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE Progressive interpretation, doctrine of — 2024 PLD 1028 SUPREME-COURT

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