There are as many political systems in the world as there are countries. It goes without saying that some countries have a written Constitution and others have an un-written Constitution. Examples of countries which have a written Constitution would be Pakistan, India, USA, France, Australia, Denmark and Brazil. Those which have an unwritten Constitution include the UK, Canada, Saudi Arabia, China, Israel and San Marino.
A country such as Pakistan is governed by a codified law. There can be no iota of doubt that the Constitution is a sacred document. This country is presently being governed by the Constitution of the Islamic Republic of Pakistan 1973. It may be pertinent to mention here that our Constitution comprises of 270 Articles.
There are three cornerstones or foundation stones of a State. These are the Legislature, the Executive and the Judiciary. In our Constitution there is a concept of “tricotomy of powers” which provides that each and every organ of the state needs to act within its jurisdiction and must not transgress it.
The Constitutional Dilemma
Two of the most important provisions in our Constitution pertain to the qualification and disqualification of a member of the Parliament i.e. Majlis-e-Shoora. These provisions are listed under Articles 62 and 63 of the Constitution.
Article 62 of the Constitution of the Islamic Republic of Pakistan 1973 pertains to qualification for membership of Majlis-e-Shoora i.e. Parliament. The said provision of the Constitution is reproduced as under for ease of reference below:
Qualifications for membership of Majlis-e-Shoora (Parliament):
- A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-
(f) he is sagacious, righteous and non-profligate, honest and amen, there being no declaration to the contrary by a court of law.
Likewise, as per Article 63 (1) (c) of the Constitution of the Islamic Republic of Pakistan 1973:
“A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if:
(c) “he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”.
Article 63 (1) (c) of the Constitution has been interpreted by the august Supreme Court of Pakistan in a number of cases, and it has been held that a person holding dual nationality at the time of submission of nomination papers is not qualified to contest the election. Such person should have clear and unambiguous evidence of relinquishment of foreign nationality at the time of submission of his nomination papers for the membership of an Assembly or Senate. If a person makes a false declaration about any of personal information required to be disclosed in the nomination papers and Affidavit, or makes concealment of material facts, then they are hit by Article 62 (1) (f) of the Constitution – which perpetually debars such person from contesting any future elections.
Reference in this regard may be made to the cases titled as Sher Baz Gaadhi Versus Muhammad Ramzan and others reported as 2018 SCMR 1952, Suo Moto Case No 8 of 2018 and Civil Miscellaneous Application No 649-L of 2018 reported as PLD 2019 SC 201, Raja Shaukat Aziz Bhatti Versus Major (r) Iftikhar Mehmood Kiani and another reported as PLD 2018 SC 578, Sadiq Ali Memon Versus Returning Officer, NA-237, Thatta-1 and others reported as 2013 SCMR 1246.
Petition filed by the Supreme Court Bar Association of Pakistan
Just a few days back, the Supreme Court Bar Association through its President, has filed a Petition seeking confirmation that the declaration by a court of law under Article 62 (1) (f) only applies to the election under question and does not entail a perpetual/lifetime bar as held by a Larger Bench of the Apex Court in the case of Samiullah Baloch Versus Abdul Karim Nousherwani reported as PLD 2018 SC 405.
The Faisal Vawda fiasco
Last week, the Election Commission of Pakistan has released the much awaited judgment in a case pertaining to the disqualification of Senator Faisal Vawda whereby he has been disqualified for life in terms of Article 62 (1) (f) read with Article 63 (1) (c) of the Constitution.
This decision was based on him giving a false declaration in his nomination papers filed before the Election Commission of Pakistan while contesting the Senate Elections. He did not disclose that he possessed a dual nationality
Does the Election Commission of Pakistan possess the attributes of being a Court of Law?
It is now well settled by the Supreme Court that the Election Commission of Pakistan does not possess the attributes of being termed as a ‘Court of Law’ and hence it is not such a court. In order for the provisions of Article 62 (1) (f) to take effect, there has to be a declaration by a ‘Court of Law’ – failing which Article 62 (1) (f) does not come into play.
The Supreme Court of Pakistan has gone a step further by going on to hold that even the Returning Officer (RO) is not a Court of Law. Hence, unless a declaration has been made to a Court of Law, the provisions of Article 62 (1) (f) do not come into play. Reference in this regard may well be made to the cases titled as Samiullah Baloch Versus Abdul Karim Nousherwani reported as PLD 2018 SC 405, Imran Ahmed Khan Niazi Versus Mian Muhammad Nawaz Sharif reported as PLD 2017 SC 265 (Both Larger Bench Judgments). Since the Election Commission of Pakistan does not possess the attributes of being a ‘Court of Law’ the judgment in Faisal Vawda’s case seems to be a judgment without jurisdiction.
The Election Commission of Pakistan’s order has been passed after a delay
It may also be pertinent to mention here that the much-awaited judgment announced by the Election Commission of Pakistan yesterday has been passed after an inordinate delay of two years.
The same is also hit by the dictum laid down in the case titled as MFMY INDUSTRIES LTD. Versus FEDERATION OF PAKISTAN through the Ministry of Commerce reported as 2015 SCMR 1550. This by in itself is an error committed by the Election Commission of Pakistan coupled with the fact that it lacked the jurisdiction to pass an order of disqualification, making it a fit case for challenge before the Supreme Court of Pakistan!
I would like to conclude by saying that indeed the consequences ordained in terms of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan are quite harsh. And against such harsh punishment, a right of appeal is a must!