ECP has no jurisdiction to disqualify candidate: SC

The Supreme Court has ruled that the Election Commission of Pakistan (ECP) has no jurisdiction to disqualify an elected lawmaker or a candidate before election, saying that the Islamabad High Court’s (IHC) ruling in the case of former Pakistan Tehreek-e-Insaf (PTI) senator Faisal Vawda was unsustainable.

In a four-page order authored by Chief Justice of Pakistan Umar Ata Bandial in the appeal of Vawda, the court said that the IHC had misconstrued the previous apex court ruling while determining that a formal declaration by a court of law was not required to disqualify the petitioner.

In February this year, the ECP had disqualified Vawda for life for submitting a false affidavit. Vawda challenged the decision in the IHC, which upheld the ECP decision. Later the Vawda filed a petition against the ruling in the apex court, which was heard by a three-judge bench led by Chief Justice Bandial.

Last month, the bench overturned the life-long disqualification of Vawda and instead simply de-seated him under Article 63(1)(c) of the Constitution on account of holding dual nationality at the time of filing nomination papers for the 2018 general elections.

“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 order said.

The order also noted that the IHC found that Vawda was disqualified pursuant to the case reported in 2018 for submitting a false affidavit hence no declaration was required. “By finding that a formal declaration by a court of law was not required” the IHC judgment misconstrued the Supreme Court rulings.

Resultantly, the apex court said, the impugned IHC judgment was legally not sustainable. “The present petition filed under Article 185(3) of the Constitution is therefore converted into appeal and the same is allowed by setting aside both the said decisions," the order added.

The court said 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.

“The petitioner [Faisal Vawda] shall be bound to comply with his undertaking and shall take immediate steps to present his resignation to the Chairman, Senate, in accordance with law. It is clarified that the petitioner shall not be considered disqualified in any subsequent election, on the basis of the instant matter."

The Supreme Court order noted that Vawda had stated before the court that he regretted his claim of renunciation of the US nationality at the time of filing his nomination papers for the election of NA-249, Karachi, on June 7, 2018, while the ‘Certificate of Loss of Nationality of the US was issued to him on June 25.

He admitted that he was disqualified from contesting the election under Article 63(1)(c) of the Constitution, on the date when he had filed his nomination papers for the election of 249 Karachi, and that this affidavit filed with the nomination papers thus contained an erroneous statement, which he regrets,” the order said.

“In order to demonstrate his good faith in remorse for his mistake, he undertakes that he will resign from the office of the member of the Senate to which was elected", the order further said.

PTI lawyer Chaudhry Faisal Hussain believes that in view of this order, the ECP cannot disqualify PTI Chairman and former premier Imran Khan in matters related to Toshakhana as well as foreign funding cases.