ISLAMABAD: The Islamabad High Court (IHC) on Friday rejected a petition of Senator Faisal Vawda of the ruling Pakistan Tehreek-i-Insaf challenging the Election Commission of Pakistan (ECP) probe into a matter pertaining to his disqualification.

Authored by IHC Chief Justice Athar Minallah, the high court while disposing of the petition expressed the hope that the ECP would conclude its proceedings expeditiously with due diligence, preferably within 60 days from the date of receiving the certified copy of this order.

The former minister for water resources in his petition had urged the high court to declare that the ECP had no jurisdiction to entertain a petition by Pakistan Peoples Party worker Dost Ali Jessar seeking his disqualification. The senator also challenged the Oct 12 interim order of the ECP that dismissed his plea seeking to end proceedings against him.

Mr Jessar had accused Senator Vawda of concealing his dual nationality at the time of filing of his nomination papers for the 2018 general elections and thus submitted a ‘false affidavit’ as a candidate for the National Assembly seat from Karachi. After enjoying the membership of the lower house of parliament for about three years, Mr Vawda became Senator.

IHC warns senator failure to participate in ECP probe into his affidavit amounts to frustrating SC order implementation

In its order, the IHC declared that the completion of the probe regarding falsity or otherwise of the affidavit submitted by Mr Vawda was ‘mandatory’ in the light of an earlier direction by the Supreme Court of Pakistan requiring all candidates for the national as well as the provincial assemblies to furnish affidavit along with their nomination papers and that failure to file such affidavit would render the nomination papers incomplete and liable to be rejected.

According to the Supreme Court ruling, if an affidavit or any part of it is found to be false, it will have its consequences as contemplated by the Constitution and the law also entailing penalty as if filing a false affidavit before the apex court. After his election, Mr Vawda furnished his affidavit.

The high court explained that ECP’s power and jurisdiction to probe into the content of a declaration made by a candidate in his or her affidavit arose out of the SC directions. Any probe regarding falsity of the affidavit was and continued to be ECP’s ‘obligation’ pursuant to the direction given by the Supreme Court, it elaborated.

If the ECP arrived at the conclusion that the affidavit contained false declaration, the commission was responsible to ensure that the consequences contemplated under the Constitution and the law ensued, the order said.

The IHC also reminded the petitioner that the high court through its March 3, 2021 judgement in the case of Mian Mohammad Faisal versus Fesal Vawda had also held that the matter of furnishing false affidavit was to be probed by the ECP and the commission could issue appropriate order.

Since this order was never challenged, it attained finality, the high court observed, adding that it was not a simple case of disqualification under Articles 62 and 63 of the Constitution, as if the probe led to the conclusion that the affidavit and contents were false, grave consequence would follow.

The order explained that neither the ECP nor the high court had the power or jurisdiction to interfere with the unambiguous directions of the Supreme Court and thus the ECP power to probe the falsity was conferred upon it pursuant to the apex court directions. Thus, the arguments advanced by the counsel representing Mr Vawda that the ECP was bereft of jurisdiction under the Election Act 2017 was ‘misconceived’, the order declared.

The court expressed the hope that the petitioner would establish his bona fides by participating in the proceedings before the ECP regarding the probe relating to the affidavit, failing which it would amount to an attempt to frustrate the implementation of the unambiguous orders of the SC.

Published in Dawn, November 13th, 2021

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