ISLAMABAD: On the day federal Minister for Water Resources Faisal Vawda was elected senator and resigned from the National Assembly to avoid ‘imminent disqualification’, the Islamabad High Court (IHC) held him apparently responsible for submitting a false affidavit regarding his nationality and directed the Election Commission of Pakistan (ECP) to proceed against him under Article 62(1)(f) of the Constitution that deals with disqualification.

Justice Aamer Farooq, disposing of a petition seeking disqualification of Mr Vawda, held that if the ECP found Mr Vawda’s affidavit false, he might face disqualification under Article 62(1)(f) and criminal proceedings under the Pakistan Penal Code.

“When the nomination papers of Vawda were filed and/or scrutinised respondent No.1 was national of USA, hence had dual nationality and was disqualified to contest the Elections in light of Article 63 (1)(c) of the Constitution,” Justice Farooq noted.

Mr Vawda had contested general elections in 2018 from NA-249 (West II) Karachi on the ticket of Pakistan Tehreek-i-Insaf and was declared successful on Aug 7 that year.

Lawmaker quits NA seat after being elected senator

The petition was filed in 2020 challenging his election as a member of the National Assembly on account of the fact that when Mr Vawda filed his nomination papers for contesting the elections he held dual nationality as he was a US citizen as well.

The petition stated that since at the time of contesting the elections, Mr Vawda furnished an affidavit to the ECP to the effect that he was not a national of any other country, he had made a false statement on oath, hence he was disqualified under Article 62 (1)(f) of the Constitution.

Justice Farooq explained that ‘inordinate’ delay in disposing of the petition was due to Covid-19 pandemic and delaying tactics adopted by Mr Vawda. “The case was taken up initially on January 29, 2020 when notices were issued to Vawda. Since due to Covid-19 pandemic courts were not functional on regular basis the case was taken up in August 2020 when notice was repeated to respondent No.1 [Vawda] as no one was in attendance on behalf of the referred respondent.”

In Sept 2020, a counsel appeared to represent Mr Vawda. The case was again taken up on October 14 that year and since a reply had not been filed by Mr Vawda, the ECP was directed to bring record of his nomination papers.

The court recalled that no one appeared on behalf of Mr Vawda on the said date. Instead an application was filed asking the court not to entertain the petition since the matter was pending before the ECP. The counsel for Mr Vawda again absented on the next date and when he appeared on a subsequent date and the court inquired him about the record of his client’s dual nationality, the lawyer sought time.

When the case was again taken up on Nov 12 a new lawyer, Haroon Duggal, appeared to represent Mr Vawda and sought permission to file fresh power of attorney and also a reply.

The case was then fixed for Jan 14, 2021 when again a reply was not filed; however, an application was filed by one of the voters/contestant of the elections on which a notice was issued.

According to the court’s observation, “final opportunity was allowed to respondent No.1 (Vawda) to file reply” however on March 3 (yesterday) his counsel submitted that the instant petition had become infructuous since Mr Vawda had resigned from the National Assembly.

On the other hand, the petitioner’s counsel Barrister Jahangir Khan Jadoon argued that even if the resignation stood accepted, the petitioner was disqualified from becoming a member of the National Assembly or the Senate in light of the fact that he had furnished a false affidavit.

The court order stated: “it is observed with dismay that respondent No.1 (Vawda) lingered on the matter by not filing reply under one pretext or the other which delayed the adjudication of the matter.”

Citing a judgement of the apex court on the issue of disqualification, the IHC judge stated that the Supreme Court had observed that failure to file an affidavit before the returning officer would render the nomination papers incomplete and liable to be rejected. Moreover, it was observed that if the affidavit or any part of it was found false then it would have consequences as contemplated by the constitution and law.

The apex court further observed that since the affidavit was required to be filed in pursuance of the orders of this court (Supreme Court), if any false statement was made therein, it would also entail such penalty as was for filing a false affidavit before the Supreme Court.

However, Justice Farooq observed that since Mr Vawda had already tendered resignation, a judicial verdict could not be issued against him at this point of time.

“However, the question of false affidavit still is pertinent…Supreme Court of Pakistan clearly observed that furnishing a false affidavit shall have consequences. In this behalf, prima facie the affidavit is false; however, under Article 62 (1)(f) of the Constitution if someone is to be held as not being Sadiq and Ameen a declaration has to be made to the effect by Court of law”, the IHC order said.

“Moreover, the furnishing and tendering false affidavit also has consequences under Pakistan Penal Code,” the court observed.

Referring to the pending complaint against Mr Vawda before the ECP, Justice Farooq held that “since the affidavits were tendered before the Election Commission of Pakistan it is just and proper that the Election Commission of Pakistan probes into the matter of veracity of affidavit”, adding that if the affidavit was found to be false it would be tantamount to submitting a false statement before the apex court.

Published in Dawn, March 4th, 2021