Disqualification for life: Vawda challenges ECP’s, IHC’s verdicts in apex court

ISLAMABAD: Former Senator Pakistan Tehrik-e-Insaf (PTI) challenged the Election Commission of Pakistan (ECP) and the Islamabad High Court (IHC)’s verdicts in the apex court.

Senior lawyer Wasim Sajjad on Friday filed an appeal against the IHC’s judgment, praying to set aside the ECP and the High Court’s judgment to disqualify him for life.

Faisal Vawda submitted that he did not hide anything from the ECP and had also submitted his cancelled US passport. He stated the ECP did not have the power to disqualify him for life and that it was not a competent court of law.

Last week, Faisal Vawda was disqualified for life from the parliament for submitting a false affidavit regarding his dual citizenship. The Commission has directed Vawda to return the salary and other benefits he had received as an MNA within two months. It also withdrew the notification declaring the PTI leader’s victory on a Senate seat in polls held in March 2021.

Following the decision, Vawda had approached the IHC, saying he was disqualified by the ECP under article 63(1)(f) without fulfilling the constitutional requirements. He also stated that the ECP announced its verdict without listening to his point of view, and requested the IHC to nullify the commission’s decision regarding his disqualification.

The PTI senator was disqualified by the election watchdog for violating Article 62(1)(f), which pertains to being “Sadiq” (truthful) and “Amin” (honest).

The IHC verdict, delivered by Chief Justice Athar Minallah, said Vawda failed to persuade the Court that the impugned order of disqualification by the ECP dated 09-02-2022, suffers from any legal infirmity requiring interference.

It further said that the Commission was bound to give effect to the said declarations and the ensuing consequences. “That is what it has done. The petitioner’s conduct has led to disqualification of an elected representative and, regrettably, he alone is responsible for the consequences,” maintained Justice Minallah.

The judgment said it appears from the record that instead of establishing his bonafides by producing a certificate of renunciation of citizenship, proceedings were delayed by the petitioner before the Commission.

The IHC state that it is indeed a settled law that when a citizen of Pakistan has acquired the citizenship of a foreign State, the latter shall not be qualified to be elected or chosen or being a member of the Parliament until and unless such legal status i.e. being a citizen of a foreign State was obliterated or extinguished. Mere initiation of the process of relinquishment was not sufficient because disqualification would remain operative till completion and conclusion of the process.

It added that the critical date for being qualified to be a member of the Parliament was the date when the nomination papers were filed. As a corollary, the process of relinquishment of the foreign nationality should have been completed and concluded before submission of the nomination papers.

The judge noted that a person is not qualified to be elected or chosen as a member of the Parliament if he or she, as the case may be, falls within the mischief of Article 62(1)(f) of the Constitution. He mentioned that the august Supreme Court in the case reported as “Samiullah Baloch and others v. Abdul Karim Nousherwani and others” [PLD 2018 SC 405] has held that ‘when 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, dishonest misappropriation, etc derived from a verdict, then the consequent incapacity or disqualification is that of a permanent nature’.

Justice Minallah continued that the lack of qualification suffered under Article 62(1)(f) of the Constitution has been held to be in perpetuity. The disqualification is, therefore, for life.

He pointed that it is obvious from the record and the events described in the impugned order of the ECP dated 09-02-2022, that the conduct of the petitioner remained contumacious over a long period of time. He kept delaying the proceedings before this Court as well as the Commission. He refused to submit a renunciation certificate issued by a competent authority of the foreign State.

He further said that the onus to establish his bonafides by producing a certificate of renunciation of his foreign citizenship issued by a competent authority was on him. In order to avoid the quo warran to proceedings, which were pending before this Court, he resigned as member of the Parliament.

The IHC CJ maintained, “The probe conducted by the Commission and the Petitioner’s own conduct established that he had filed a false affidavit pursuant to the judgment of the august Supreme Court in the case of Habib Akram, supra.”

The court also asked the counsel for the petitioner that whether he could produce the certificate of renunciation of the foreign nationality issued by the competent authority of the concerned State. The counsel stated that the delay in issuance of the certificate was inadvertent and could not be attributed to any deliberate act of the petitioner. He also stated that there was no malafide nor malice on part of the petitioner.

Copyright Business Recorder, 2022