Vawda to challenge disqualification in IHC

PTI leader Faisal Vawda has decided to approach the Islamabad High Court (IHC) to challenge the Election Commission of Pakistan’s (ECP) decision that disqualified him for life in a dual nationality case.

A senior PTI leader told The Express Tribune that Vawda has engaged senior lawyer Wasim Sajjad as counsel to plead his case.

The PTI leader has decided to approach the high court instead of the Supreme Court as the electoral watchdog passed the order without jurisdiction, the party insider explained, adding that the government was sanguine about the prospects of securing stay on the first day of the hearing.

He said that the government was very disappointed with the conduct of Chief Election Commissioner (CEC) Sikandar Sultan Raja. “Even though one top functionary tried for reconciliation between CEC and the government but in vain,” he added.

The ECP in its order had observed that Vawda, at the time of filing his nomination papers for the National Assembly constituency, was not "an eligible/qualified person in terms of Article 63(1)(c) of the Constitution and had submitted a false affidavit and declaration to this effect which squarely falls within the ambit of Article 62(1)(f) of the Constitution".

Article 62(1)(f) sets the precondition for a member of parliament to be "sadiq and ameen" (honest and righteous). It is the same provision under which former prime minister Nawaz Sharif was disqualified by a five-judge SC bench on July 28, 2017, in the Panama Papers case.

Similarly, PTI leader Jahangir Tareen was disqualified on Dec 15, 2017 by a separate bench of the apex court under the same provision.

ECP’s mandate

Meanwhile, the ECP’s last week decision to hand Vawda a lifetime disqualification under Article 62(1)(f) of the Constitution has stirred a strong debate whether the electoral body had the constitutional mandate to pass such orders.

In August last year, the Supreme Court had held that the ECP had no power to consider the 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.

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’s 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 the petition seeking his disqualification on account of holding dual nationality.

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