Lifetime disqualification: Supreme Court rejects Faisal Vawda’s plea for stay on ECP order

ISLAMABAD: The Supreme Court (SC) on Tuesday declined Pakistan Tehreek-e-Insaf (PTI) leader Faisal Vawda’s request for granting a stay against the order of the Election Commission of Pakistan (ECP), disqualifying him from holding public office for lifetime.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial, and comprising Justice Sajjad Ali Shah and Justice Muhammad Ali Mazhar, heard the petition of Faisal Vawda

The PTI leaders had filed a petition in the Supreme Court under Article 185 (3) of the Constitution for leave to appeal against the ECP order issued on Feb 9 and judgment of the Islamabad High Court (IHC) dated Feb 16. He had prayed to the apex court to set aside the ECP and the IHC orders.

“At the moment, we cannot suspend the order of the Election Commission of Pakistan as the petitioner has given a false affidavit and its consequences will be grave,” CJP Umer Ata Bandial remarked.

The CJP, however, observed that the court would consider the questions raised by the petitioner’s counsel over the jurisdiction of the Election Commission. “We consider the questions of great importance because it involves the vesting of exercising judicial powers by the Election Commission for disqualifying a candidate for election for life without any provisions available,” the CJP remarked and issued notices to the respondents.

The court also held that the result of the election on the Senate seat left vacant by the petitioner would be subject to the outcome of the instant case. Earlier, Barrister Waseem Sajjad, counsel for Faisal Vawda, while arguing before the court, questioned the jurisdiction of the ECP. He contended that the ECP was not a court of law for disqualifying a legislator for lifetime by applying Article 62(1)(f) of the Constitution.

The counsel cited some judgments of the apex court, wherein it was contended that the ECP had no jurisdiction, either under Article 218 (3) of the Constitution or under Section 9 (1) of the Election Act 2017, to deal with the matter of alleged qualification or disqualification of a returned candidate.

He submitted that under Article 225 of the Constitution, no election to a house or provincial assembly shall be called in question except by an election petition, presented to such a tribunal and in such manner as may be determined by the Act of Majlis-e-Shura (Parliament).

Waseem Sajjad submitted that Article 62 (1)(f) of the Constitution, which whenever invoked, leads to serious consequences including disqualification of a candidate for life, adding that it requires a declaration by a court of law in each individual case regarding the character of a person, adding that that would require recording of evidence also in the light of judgments of the Supreme Court and Article 10A of the Constitution.

He submitted that the Commission could possibly have invoked Article 63 (1)(c) of the Constitution to hold that he was not qualified to be a Member of the National Assembly (NA-249) but not disqualified him for life.

In this respect, Waseem Sajjad contended that such a process was adopted in case of Sadia Abbasi, 2019 SC 201, and Murad Ali Shah 2019 SCMR 1939. He submitted that the apex court, in the case of Syed Murad Ali Shah, had held that in the absence of reasons and evidence Article 62 (1)(f) could not be invoked.

“Your point is related to the jurisdiction that the ECP has no jurisdiction to determine the qualification or disqualification of a returned candidate,” CJP Umer Ata Bandial asked Waseem Sajjad.

The CJP observed that the Constitution also vest jurisdiction to high court and the high court had ordered to probe the matter of the petitioner. “If the ECP had no jurisdiction, then why the high court ordered for probe,” the CJP asked the counsel. The chief justice further asked Waseem Sajjad to read the order of the high court which the counsel did.

The CJP then asked the counsel about the volume of cases, decided by the Election Commission of Pakistan (ECP) under Article 62(1)(f) of the Constitution. The counsel replied it can’t.

The chief justice further asked Waseem Sajjad as to whether the order passed by the ECP , disqualifying the petitioner for lifetime, was appealable? “Your conduct is before us as then what should be done about your conduct,” the CJP asked the counsel.

“You put in a run in the high court and we don’t like this,” the CJP continued. The counsel, however, replied that Covid-19 was the main reason. He submitted that his client was a citizen of USA by birth and he did not acquire the USA citizenship, as contemplated by Article 63 (1)(c) of the Constitution.

The chief justice observed that they want to consider the point of jurisdiction whether the ECP possessed jurisdiction to disqualify a lawmaker for lifetime, but will also look into the conduct of the petitioner while using delaying tactics when his case was pending in the high court.

Waseem Sajjad submitted that lifetime disqualification for a politician was like a death sentence. The chief justice, with a smiling face, responded that it’s not a case of death sentence. However, Waseem Sajjad replied that that was a political death. "We will not go into that but will examine as to whether the Election Commission is competent to disqualify a lawmaker for lifetime,” the CJP remarked.

Justice Muhammad Ali Mazhar, another member of the bench, asked the counsel why he did not file an Intra Court Appeal (ICA) against the high court order. “Keep aside the point of jurisdiction, tell us where the matter of submitting false affidavit will go.”

Waseem Sajjad repeatedly requested the court to stay the order of the Election Commission as he said that election schedule on the seat vacated by his client had been issued for March 9.

“We have issued notices to the respondents, hence it’s sufficient,” Justice Sajjad observed. “This order is issued with consensus and you have seen it,” the CJP told the counsel. Later the court issued notices to respondents as well as Attorney General and adjourned the matter.