ISLAMABAD: The Election Commission of Pakistan (ECP) on Wednesday disqualified PTI Senator Faisal Vawda over concealment of his dual nationality, sparking a debate on whether the commission can exercise the jurisdiction of a court of law to declare somebody ineligible for a public office.

An ECP bench headed by Chief Election Commissioner (CEC) Sikandar Sultan Raja also directed Mr Vawda to return within two months the salary and other benefits he had received as a minister and a member of the National Assembly. It also de-notified him as senator.

The ECP had on Dec 24 last year reserved its verdict on petitions seeking disqualification of Mr Vawda over concealment of his US citizenship.

While some legal experts believed that since the ECP was not a court of law, its role was confined to conduct of elections and it could not disqualify somebody in a post-poll scenario, a senior ECP official said that though the law was ambiguous and needed clarity, the commission had sufficient powers under Article 218 of the Constitution to hold free, fair and transparent elections and guard against corrupt practices. He said the Supreme Court had in its judgement in the Workers Party case held that the ECP could also act pre-emptively.

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“...in exercise of powers under Article 218(3) of the Constitution, read with Section 8(c) of the Elections Act 2017, we conclude and hold that the respondent at the time of filing of his nomination papers for the constituency was not an eligible/qualified person in terms of Article 63(1)(C) of the Constitution and has submitted false affidavit and declaration to this effect which squarely falls within the ambit of Article 62(1)(f) of the Constitution. Resultantly, the respondent, who has since resigned from the membership of National Assembly, is directed to refund all monetary benefits drawn by him for the period during which he occupied the seat of National Assembly and held the public office and drawn his emoluments from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which shall be deposited with the secretary, National Assembly, within a period a two months,” the ECP order read.

It also said that it was a matter of record that the respondent had filed a false affidavit along with his nomination papers before the returning officer on June 7, 2018, on the basis of which he contested election for the seat of National Assembly and thereafter became a federal minister.

“Admittedly, he tendered his resignation from the seat of National Assembly on 03.03.2021 [polling day for Senate elections] when the case was being argued before the Hon’ble Islamabad High Court, which makes his conduct doubtful as he in order to cover his guilt resigned from the seat of National Assembly after casting vote as MNA for Senate elections and presented himself for the seat of Senate. Such an act further makes the issue doubtful. Therefore, we unanimously hold that notification dated 10.03.2021 to the extent of respondent as a Senator be withdrawn forthwith on account of filing false affidavit, misstatement/false declaration on oath which bear consequences,” read the order.

The vote Mr Vawda had cast in the Senate polls held on March 10, 2021, as a member of the National Assembly was also “invalid”, said the written order announced by the CEC.

In the order, the commission observed that a person holding a nationality or citizenship of another country was required to obtain a declaration form from the country in question regarding the renunciation of his nationality to qualify as a citizen of Pakistan. The ECP noted that during this case Mr Vawda accepted that he did not hold any kind of declaration regarding the renunciation of his US nationality at the time of filing his nomination papers in 2018. This, the ECP said, meant that the declaration he submitted as part of his nomination was “false”.

“Another argument of the respondent that the National Identity Card for Overseas Pakistanis (Nicop) issued to him was cancelled on May 29, 2018, and a Computerised National Identity Card (CNIC) was issued which confirms that he has lost his US nationality is forceless,” the order said.

The commission said that “mere surrendering of Nicop or cancellation of the passport” was not proof of surrendering nationality as per law.

Article 62(1)(f) of the Constitution, which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous), 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. Likewise, PTI leader Jahangir Tareen was disqualified on Dec 15, 2017 by a separate bench of the apex court under the same provision.

The Supreme Court has already ruled that disqualification under Article 62(1)(f) of the Constitution translates into a lifetime ban on contesting elections.

Reacting to the development, PPP chairperson Bilawal Bhutto-Zardari tweeted: “One more PTI wicket down.”

Meanwhile, the ECP put off the hearing of PTI foreign funding case to March 1 as the party’s counsel, Anwar Mansoor Khan, once again asked for an adjournment through his junior lawyer as he was busy in hearings before the Supreme Court.

On Feb 1, he had also sought adjournment due to his ill health.

The counsel for petitioner and PTI founding member Akbar S, Babar protested over yet another adjournment sought by the PTI lawyer. He said that during the last seven years since the case was filed, the PTI had sought at least 24 adjournments on similar or other grounds which the ECP had in its October 10, 2019 order termed “historic abuse of law” to delay the case.

Published in Dawn, February 10th, 2022