Can ECP ban a lawmaker under Article 62?

SC judgment ruled against commission inheriting such power

ISLAMABAD:

After the disqualification of former PTI senator Faisal Vawda, a debate has started as to whether the Election Commission of Pakistan (ECP) has the jurisdiction to disqualify a lawmaker for life under Article 62(1)(f) of the Constitution.

It is learnt that Vawda will challenge the ECP decision in the apex court soon. There is also chance that the apex court may suspend the ECP judgment on the first day of hearing.

Senior lawyers believe that the ECP “does not come under the purview of 'court of law', which could declare verdict under Article 62(1)(f) of the Constitution.

In August last year, the Supreme Court held that the ECP has no power to consider qualification or disqualification of an election candidate or an assembly member.

"In our view there is no power or jurisdiction inherent in the commission itself in terms of Article 218(3) to consider the qualification/disqualification of a candidate/member, whether as an independent, standalone issue or as part of an election dispute," said the majority judgment authored by Justice Munib Akhtar and endorsed by Justice Syed Mansoor Ali Shah.

Also read: Vawda will move SC against ECP's disqualification verdict: Sheikh Rashid

The court observed that during the entire process leading up to the day of the elections, the question of whether the candidate was qualified or not had already been scrutinised.

"This scrutiny, of the nomination papers, is done by returning officers. However, they are not the only ones allowed by law to scrutinise the nomination papers. They are also open to objections by others. Under the 1976 Act, this right was of a somewhat restricted nature: see Section 14(1). Under Section 62 of the 2017 Act, the right has been extended to any voter of the constituency.

In Sindh Chief Minister Murad Ali Shah disqualification case, Chief Justice of Pakistan Umar Ata Bandial, in his additional note, wrote that the larger bench in its verdict had already held that a dual national candidate or elected member incurred disqualification under Article 63(1)(c) of the Constitution which was limited to the election under dispute.

The court had rejected petition seeking his disqualification on account of holding dual nationality.

However, the respondent has filed review petition in the apex court. The matter is still pending.

Senior lawyers believe that Faisal Vawda’s matter may be clubbed with the Sindh chief minister’s case.
Article 62 says that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (parliament) unless he is sagacious, righteous and non-profligate and honest and ameen.”

However, the 18th Amendment to the Constitution amended Article 62(1)(f) in the year 2010 to incorporate a condition that only a declaration, inter alia, of dishonesty given by a court of law could disqualify a candidate from contesting elections to parliament or a provincial assembly.

Also read: ECP disqualifies Vawda for life in dual nationality case

The amended constitutional provision of Article 62(1)(f) says that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (parliament) unless he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”.

The Supreme Court in the Allah Dino Khan Bhayo case noted that 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.

By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision.

Accordingly, in Sardar Yar Muhammad Rind case, the Supreme Court 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 Panama Papers case, 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.