ECP itself can’t make declaration about lawmakers’ qualification, rules SHC

The Sindh High Court has observed that the Election Commission of Pakistan (ECP) itself cannot make a declaration to the effect that a legislator does not satisfy one or more of the requirements of Article 62(1) (f) of the constitution that binds the legislator to be sagacious and righteous person.

Unless there is a declaration by the court of the law to the contrary effect or less such effect, it must be assumed that the legislator satisfies the requirement of Article 62(1) (f) of the constitution, said the high court on Monday in its observations on a petition of Pakistan Peoples Party Parliamentarians MPA Nawab Gaibi Sardar Chandio.

The MPA has challenged the election commission’s proceedings over a complaint of a rival candidate under Article 62(1) (f) about misdeclaration of assets at the time of filing his nomination papers with the returning officers.

He has challenged the election commission’s jurisdiction, submitting that the ECP could only entertain a reference of disqualification of a member of parliament in terms of Article 63 read with 113 and 127 of the constitution. He requested the court to quash the ECP’s proceedings initiated over the complaint of the losing candidate of PS-42 Kambar-Shahdadkot for seeking disqualification under Article 62(1)(f). The ECP and the respondent’s counsel justified the proceedings, however.

A division bench, headed by Justice Munib Akhtar, observed that the ECP was certainly a constitutional authority, but it was not a court of the law and it itself could not make a declaration to the effect that the legislator did not satisfy one or more of the requirements of Article 62(1) (f) of the constitution that bound the legislator to be sagacious and righteous person.

It further said Article 62 was substituted in its entirety by the 18th amendment and effects of the words were clear that unless there was declaration by the court of the law to the contrary effect or less such effect it must be assumed that the legislator satisfied the requirement of Article 62(1) (f) of the constitution.

The court observed that the existence of such a declaration was an absolutely necessary condition for clause (f) to cease applying to a legislator.  It said that even if the matter was placed before the ECP in terms of clauses (2) and (3) of Article 63, and if the ground taken for disqualification was that the legislator had failed to meet the requirements of Article 62(1) (f) but there was no declaration to this effect by the court of the law, the proceedings must necessarily fail and the reference before the ECP must be dismissed.

The high court observed that it was the admitted position in instant case that there was no declaration by the court of the law that the petitioner had failed to meet the requirements of Article 62(1) (f) and no purpose would be served in letting the proceedings continue before the ECP.

The court quashed the election commission’s proceedings pending over the complaint of Chandio against the PPP MPA and ordered that no other or further action be taken thereof in this regard.