ISLAMABAD: The Supreme Court has held that a permanent bar to the eligibility of a candidate for election is enforced so long as the judgment that records or justifies the disability of the candidate remains in existence and occupies the field.
A three-judge bench, headed by Justice Umar Ata Bandial ruled in the verdict given on a review petition of Allah Dino Khan Bhayo. The judgment authored by Justice Ata Bandial noted that Articles 63 (1)(a) and 63(1)(b) of the Constitution provides disqualifications on account of judicial declaration regarding the mental unfitness or the undischarged insolvency of a candidate for election.
These disabilities also continue so long as the adverse judgment is in the field. "The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself," the court observed.
The judgment observed that according to the apex court's verdict in the Sami Ullah Baloch's case a disqualification under Article 62(1)(f) of the Constitution can only be imposed by or under a declaration made by a court of law.
In Samiullah Baloch's case this Court affirmed the rule that Article 62(1)(f) of the Constitution creates a permanent bar against contesting the general election. However, in para 23 said; "...Where a declaration made by a Court of law against a candidate for election warrants a conclusion of his misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. to be derived from such a verdict, then it stands to reason that the consequential incapacity imposed upon the candidate for election should last for as long as the declaration is in force."
The judgment said "the Court (SC) in the Sardar Yar Muhammad Rind vs. Election Tribunal Balochistan, Quetta and others (PLD 2020 SC 137) held that a judicial declaration disqualifying a candidate under Article 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence.
"In the case reported as Imran Ahmad Khan Niazi vs Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), the court elaborated that even an Election Tribunal can only disqualify a candidate when its declaration is issued on the basis of evidence before it. Such a requirement is implicit in Article 10A of the Constitution, which makes both due process and fair trial a fundamental right in lawful judicial proceedings.
"Thus, the determination of a dispute relating to a right or liability, the recording of evidence including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a court of law (ref: Tariq Transport Co., Lahore Vs. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali vs Government of East Pakistan (PLD 1970 SC 173), the judgment said.
"It is evident that the summary finding given by the returning officer against the review petitioner in the year 2007 did not comply with the requirement laid out in Article 62(1)(f) of the Constitution as amended in the year 2010, namely a declaration by a court of law.
"The said impact of the 18th Amendment went unnoticed in our judgment under review dated 09.07.2013 thereby constituting an error apparent on the fact of the record. Having said that, a finding of dishonesty remains an ignoble impediment against the election of the petitioner. Therefore, it must be overcome by the petitioner if at any stage in the future he wishes to contest elections".
The petitioner (Allah Dino) was elected as a member of the Sindh Provincial Assembly in 2013. However, on a complaint filed against him, the Election Commission of Pakistan (ECP) in exercise of its powers under Section 103-AA of the Representation of People Act, 1976 declared vide order dated 11.06.2013 that the petitioner was disqualified, inter alia, under Article 62(1)(f) of the Constitution to contest in the general election of 2013. The petitioner's challenge to the said finding was ultimately rejected by this Court which upheld the order of the ECP vide judgment dated 09.07.2013.
The ECP order based on the finding of the returning officer, who had disqualified the petitioner from contesting general election 2018 from PS-12 Shikarpur-II on the basis that the equivalence certificate issued by Shah Abdul Latif University, Khairpur about the petitioner's claimed sanad was fake. Therefore, he stepped out of the elections and did not challenge the finding by the returning officer.
Copyright Business Recorder, 2020
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