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Tuesday December 06, 2022

Article 62(1)(f) a draconian provision: CJP

A three-member bench of apex court, headed by CJ Umer Ata Bandial, heard petition of PTI leader Faisal Vawda

October 05, 2022
Chief Justice Umer Ata Bandial. Courtesy Supreme Court website
Chief Justice Umer Ata Bandial. Courtesy Supreme Court website

ISLAMABAD: Chief Justice of Pakistan Justice Umer Ata Bandial on Tuesday observed that Article 62(1)(f) is a draconian provision of the Constitution and the court will be very much cautious in dealing with such matters.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial, heard the petition of PTI leader and former federal minister Faisal Vawda, filed against the verdict of Election Commission of Pakistan (ECP) disqualifying him for lifetime under Article 62(1)(f) of the Constitution in a dual citizenship case.

Faisal Vawda had filed a petition in the Supreme Court under Article 185(3) of the Constitution for leave to appeal against the order of Election Commission of Pakistan dated February 9 and judgment of the Islamabad High Court dated February 16, 2022.

The Election Commission on February 9, 2022 had disqualified ruling Pakistan Tehreek-e-Insaf senator and former MNA and federal minister Faisal Vawda under Article-62(1)(f) of the Constitution in a dual citizenship case.

In the 27-page judgment, the Chief Election Commissioner (CEC) had held that Faisal Vawda had submitted a false affidavit while submitting nomination papers for the 2018 elections. The Supreme Court had ruled in April 2018 that disqualification handed down under Article 62(1)(f) of the Constitution was for life. Following the judgment, the ECP had also denotified him as senator. Vawda was notified as a returned member of the Senate on March 10, last year.

The Election Commission had held that Vawda, at the time of filing his nomination papers, was not eligible/qualified person in terms of Article-63(1)(c) of the Constitution and had submitted a false affidavit and declaration to this effect which squarely falls within the ambit of Article-62(1)(f) of the Constitution.

On Tuesday, Barrister Waseem Sajjad, counsel for Vawda, contended that the order of the Election Commission of Pakistan dated February 9 and the Islamabad High Court judgment dated February 16, 2022 are arbitrary, without lawful authority and of no legal effect adding that it is also contrary of the judgments of the Supreme Court of Pakistan.

The counsel contended that the Election Commission has no jurisdiction to disqualify for lifetime a member of the parliament adding that in the instant case, the ECP has crossed its jurisdiction by disqualifying his client for lifetime.

Wasim Sajjad submitted that his client was elected to parliament in 2018 while the ECP disqualified him for life time after two years. The Election Commission was not the forum to examine the eligibility of election of a member of a parliament after two years.

The Chief Justice, however, observed that if the court declared the decision of the Election Commission of disqualifying his client as void, even then the facts of the matter would remain the same and cannot be changed as well.

“Your client had also challenged his disqualification before the learned high court and after examining the facts of the case, the high court has also dismissed your appeal,” the Chief Justice told Waseem Sajjad.

“It means that the learned high court had rightly examined the facts of the case,” the chief justice added and remarked that although Article 62(1)(f) is a draconian provision of the Constitution yet the court will deal the matter with caution.

Farooq H Naek, counsel for Qadir Khan Mandokhel who was elected in by-election on NA-249 Karachi on the seat vacated after the disqualification of Faisal Vawda, told the court that the learned high court had dismissed the appeal of Faisal Vawda against his disqualification and had held that the petitioner had accepted his dual citizenship.

Naek prayed the apex court to dismiss Vawda’s petition. The Chief Justice, however, observed that at present the facts of the case were not before them but a legal question for examination was whether the Election Commission was a competent forum to disqualify a lawmaker for lifetime or not.

“We will examine this legal question in detail but right now we are short of time as we have to hear another case for which we have constituted a special bench,” the CJP remarked. Meanwhile, the court adjourned the hearing for October 6. 

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