CJP sees ‘draconian’ elements in sadiq, ameen clause
• Justice Bandial says Vawda’s plea against lifetime disqualification to be heard ‘with caution and in detail’
• ECP can proceed against lawmaker for concealing facts, but SC will examine if it can order lifetime ban
ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday remarked that Article 62(1)(f) of the Constitution, which establishes that a politician must be “sadiq and ameen” (honest and righteous) to hold a public office, is a draconian law.
Heading a three-member bench hearing a petition filed by Pakistan Tehreek-i-Insaf (PTI) leader Faisal Vawda that challenged his lifetime disqualification under the law for holding dual nationality, the CJP observed that “Article 62(1)(f) is a draconian law and we will hear this case with caution and in detail now”.
As per the article, which sets the qualification for membership of parliament: “A person shall not be qualified to be elected or chosen as a member of Majlis-i-Shoora (parliament) unless he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”
In the recent past, besides Mr Vawda, many other lawmakers have been disqualified for life under this very law for not being sadiq and ameen (sagacious and righteous) though there is no set limit for disqualification under this article. In 2018, a five-judge Supreme Court bench had unanimously held that ineligibility handed down under Article 62(1)(f) was for life.
This is the same provision under which former prime minister Nawaz Sharif was disqualified by a five-judge SC bench in July 2017 in the Panama Papers case. Similarly, estranged Pakistan Tehreek-i-Insaf (PTI) leader Jahangir Tareen was disqualified by a separate bench of the apex court under the same provision.
The Supreme Court Bar Association had earlier this year petitioned against lifetime disqualification under this provision, which was still pending adjudication.
During Tuesday’s hearing, the SC observed that the Election Commission of Pakistan (ECP) could proceed against any lawmaker for concealing facts in the affidavit submitted along with his/her nomination papers before contesting an election. However, the apex court had to determine whether the election commission was competent to disqualify Vawda for life or otherwise.
CJP Bandial was of the view that the ECP had rightly examined the facts, and even if the court sets aside the disqualification of Mr Vawda, facts could not be changed.
Advocate Farooq H Naek, the counsel for the complainant against Vawda before the ECP, argued that the Islamabad High Court (IHC) had in its judgement issued in the PTI leader’s case categorically stated that the former senator had admitted to his dual nationality.
CJP Bandial remarked that the court would hear this matter in detail, and adjourned the hearing till Thursday.
Faisal Vawda had approached the Supreme Court to set aside the ECP’s decision of Feb 9 that barred him from participating in parliamentary politics.
Moved through senior counsel Waseem Sajjad, the former PTI senator’s petition pleaded that the ECP had cited no grounds or reasons for invoking Article 62(1)(f) of the Constitution to disqualify him for life. The commission appeared to be under the impression that any person disqualified under Article 63(1)(c) -- for possessing dual nationality -- could automatically be penalised under Article 62(1)(f), it stated.
In order to incur a penalty under Article 62(1)(f), there must be mens rea (criminal intent) as well as evidence before a court of law, the petitioner stated, but “both are missing in the ECP’s pronouncement”.
The ECP had disqualified Vawda for life by invoking Article 62(1)(f) even though the Supreme Court had held in the Allah Dino Bhayo case last year that the commission was not a court of law, the petition said.
The petition basically is an appeal against the Feb 16 rejection by the IHC of his challenge to the ECP decision wherein the high court had held that the commission was bound to give effect to the apex court’s declarations, and that was what it had done.
Published in Dawn, October 5th, 2022