5 December 2022
By Ahmed Saeed
LAHORE: The Supreme Court of Pakistan has declared that the Election Commission of Pakistan (ECP) has no jurisdiction as per the constitution and Election Act 2017 to disqualify an elected lawmaker or a candidate before the election.
The apex court overturned the decisions of the ECP and Islamabad High Court (IHC) to disqualify former Federal Minister and Senator Faisal Vawda for filing a false affidavit during the 2018 General election.
The 4-page verdict is authored by Chief Justice Umar Ata Bandial.
“The ECP has no jurisdiction under Article 218(3) of the Constitution read with Section 3c or 9(1) of the Election Act 2017 to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate. Therefore, the decision of the ECP was without jurisdiction,” the 4- page verdict authored by Chief Justice Umar Ata Bandial said.
Vawda was disqualified under 62-1(f) by the ECP in February 2022 for submitting a false affidavit of renunciation of the US nationality. The former senator then appealed the ECP’s decision in the IHC, which also sustained the electoral body’s decision.
Vawda then moved the apex court against the long-life ban to contest elections. The court during the proceeding gave two options to the appellant; show regret and submit an apology for submitting a false affidavit and get a one-time disqualification under 63 1(c) or pursue your petition under Article 62-1(f) to get a potential lifetime ban.
Vawda chose the latter option and verbally apologized to the court.
The court order noted that Vawda would not be considered disqualified in any subsequent election. “We are of the opinion that we need not proceed further in the matter in the peculiar facts and circumstances of the case,” Chief Justice Bandial said in the order.
Vawda case decision an opportunity for Nawaz Sharif
The apex court’s decision to overturn Vawda’s lifetime disqualification is being viewed as a window of opportunity for former Prime Minister Nawaz Sharif and senior politician Jahangir Tareen to have their disqualifications reversed.
Senior Lawyer and former President Supreme Court Bar Association, Hamid Khan believed that Nawaz Sharif and other lawmakers who have previously been disqualified under Article 62-1(f) by the Supreme Court can be benefitted from this new legal precedence.
He also said that Vawda case verdict also hints at a change of heart at the supreme court regarding the long-life disqualification of the politicians.
Supreme court in 2017 disqualified a three-time Prime Minister under 62-1(f) for not disclosing an un-withdrawn salary in the nomination papers during the 2013 general elections. While Jahangir Khan Tareen, then a PTI stalwart was also disqualified in December 2017 for not concealing his London properties. However, Tareen’s disqualification was termed as a balancing act by political pundits to ease off the pressure from the judiciary.
Both Sharif and Tareen filed review petitions in the SC against their disqualification which were subsequently rejected hence their disqualification has attained finality.
SC yet to hear SCBA petition on 62-1(f)
The SCBA under the leadership of former president Ahsan Bhoon filed a constitutional petition for interpretation of article 62-1(f) and asked the SC to set a time period for disqualification.
Amjad Shah, former vice chairman Pakistan Bar Council said that the Supreme Court’s view on perpetual disqualification is being changed, so the apex court must decide on the SCBA petition.
“There is no concept of a lifetime disqualification in the constitution then how can the Supreme Court do it? The supreme court cannot rewrite the constitution,” Shah said
He said that the SC has immense powers under Supreme Court rules and under article 184(3) to undo its previous judgments and give relief to affectees of those judgments.
‘Nawaz Sharif case will always remain an outlier’
Meanwhile, senior constitutional lawyer Salman Akram Raja opined that the Faisal Vawda case was different from Nawaz Sharif’s case hence the former prime minister could not reap any benefit from Vawda’s judgment.
“Vawda’s defense in this case revolves around the fact that he made a technical legal error and he had not submitted a false affidavit intentionally and that’s why the Supreme court found a way to mitigate the legal consequences for him,” said Raja.
However, Raja was of the view that the disqualification of Nawaz Sharif was clearly wrong and the supreme court set the bar of qualification very high in that case.
“Supreme Court has already moved away from that standard in many previous electoral disqualification cases. The Nawaz Sharif case will always remain an outlier,” Raja said.