Legal hitch likely to delay Malik’s disqualification
ISLAMABAD: Many may be expecting the disqualification of Interior Minister Rehman Malik any time after perceived expiry of a 30-day deadline given to the Senate chairman for sending a reference against him to the Election Commission, but a legal hitch might delay the process for an indefinite period, sources told Dawn on Saturday.
The sources in the Senate secretariat disclosed that the Senate chairman had not yet received any reference from the Supreme Court in line with its judgment in the dual nationality case pronounced a month ago.
The judgment reads: “…………therefore a reference will be required to be made to the Senate Chairman under Article 63 (2) in view of the provision of Section 99 (1) (f) of the Act of 1976, which lays down that a person shall be disqualified from being elected or chosen as a member of an assembly unless he is sagacious, righteous and non-profligate and honest and ameen.”
The source said under the law, the Senate chairman would have to determine within one month whether a disqualification had taken place or not after the receipt of a reference from the Supreme Court clearly mentioned in the judgment.
A senior official of the Election Commission said the commission could act against Mr Malik only after receiving a disqualification reference from the Senate chairman. He referred to the confusion arising out of the judgment’s wording and wondered when the deadline available to the Senate chairman would expire.
He indicated that the commission would act only either on receiving a reference from the Senate chairman or getting clear
directions from the apex court.
The official said in the case of former prime minister Yousuf Raza Gilani, the Election Commission had acted only after the Supreme Court had given clear directions to de-notify his election after finding him guilty of contempt of court and after the National Assembly speaker ruled that Mr Gilani was not guilty of contempt.
He said legal proceedings against Mr Malik had already been initiated on the directive of the Supreme Court and the matter had been referred to the district and sessions judge concerned.
Some legal experts believe that the Senate chairman is not to apply his mind in the cases where an allegation of violation of Article 63 by a senator stands proved. They say that a reference automatically stands referred when the court finds somebody guilty of an offence falling under any of the disqualification clauses.
But no action from the Election Commission is in sight for the moment. The sources said the commission would meet on Monday, but the issue of Mr Malik’s disqualification was not on its agenda.
A source said the commission had not received the reference from the Senate chairman till Friday.
The Supreme Court in its short order in the dual nationality case had observed: “At the time of filing of nomination papers for election to the Senate in 2008, Mr Malik made a false declaration that he was not a dual national and was thus not disqualified on that account. In view of the false declaration, he cannot be considered sagacious, righteous, honest and ameen within the contemplation of Section 99(1)(f) of the Representation of People’s Act (RPA). Therefore, for such purposes Article 63(p) is to be adhered to because the disqualification incurred by him is envisaged under the law in view of his own statement that he had renounced his citizenship of the UK whereas the fact remains that such renunciation along with declaration can only be seen as having been made on May 29, 2012.”
Mr Malik was directed to refund all monetary benefits drawn by him up to July 11 for the period during which he occupied the public office.
“Prima facie, it is apparent that Mr Malik quit his citizenship after the institution of the petition against double nationals, as is evident from the contents of the May 29 letter wherein he was informed by the concerned UK authority that he was now
registered as having renounced the British citizenship.”
The apex court stated: “Senator A. Rehman Malik, at the time of filing of nomination papers for election to the Senate held in the year 2008, had made a false declaration to the effect that he was not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the Parliament/Provincial Assembly, therefore, reference will be required to be made Constitution Petition No.05/2012 to the Chairman Senate under Article 63(2) in view of the provision of section 99(1)(f) of the Act of 1976, which lays down that a person shall not be qualified from being elected or chosen as a member of an Assembly unless he is sagacious, righteous and non-profligate and honest and ameen.”
Article 63 says: “If any question arises whether a lawmaker has become disqualified, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the ECP within 30 days, and if he fails to do so within this period, it shall be deemed to have been referred to the ECP. The ECP shall decide the question within 90 days from its receipt or deemed to have been received, and if it is of the opinion that the member has become disqualified, he shall cease to be so and his seat shall become vacant.”