The Islamabad High Court dismissed on Wednesday a petition filed by PTI leader Faisal Vawda against his lifetime disqualification from parliament by the Election Commission of Pakistan (ECP) for concealing his dual nationality at the time of contesting the National Assembly election in the 2018 general elections.
An ECP bench last week, headed by the chief election commissioner, had disqualified Vawda for concealing his US citizenship and directed him to return the salary and other benefits he had received as a minister and as a member of the National Assembly, within two months. It had also de-notified him as a senator.
Vawda had subsequently filed an appeal with the high court on Tuesday, challenging the ECP's decision.
The IHC observed in its judgement today that the ECP had disqualified Vawda after concluding that he had submitted a false affidavit regarding his nationality to the commission at the time of the filing of his nomination papers to contest elections from Karachi's NA-249 constituency in 2018.
"The fact that on the date the affidavit was submitted along with the nomination papers, the process of renunciation of the petitioner’s foreign citizenship was not concluded nor completed stands established, rather, candidly conceded," the IHC order read, adding that a declaration regarding the consequences of such an occurrence had been made by the Supreme Court (SC) in a previous case.
Citing the SC's judgement in the case, the order stated: "If the affidavit or any part thereof is found false, then it shall have consequences, as contemplated by the Constitution and the law. Since the Affidavit is required to be filed in pursuance of the orders of this [Supreme] Court, therefore, if any false statement is made therein, it would also entail such penalty as is of filing a false affidavit before this [Supreme] Court.”
The IHC further said in its order that Vawda's election had also been challenged previously on the same grounds (false affidavit) through a writ petition filed in the same court but he kept delaying proceedings and eventually, after a year, said he had resigned from the National Assembly and thus the court disposed of the petition for being "infructuous".
It further stated that it was particularly observed at the time that "however, the matter of furnishing [a] false affidavit is to be probed by the Election Commission of Pakistan since the same was submitted before it and the commission may pass appropriate orders with respect to the same.”
This order was not challenged by Vawada, who was elected a senator soon after his resignation, the IHC said, adding that "it appears from the record that instead of establishing his bonafides by producing a certificate of renunciation of [his] citizenship, proceedings were delayed by the petitioner before the commission."
Today's order also mentioned an intra-court appeal filed by Vawda, challenging the ECP probe into a matter pertaining to his disqualification.
The appeal, however, was [disposed of], with the court directing the ECP to conclude its proceedings expeditiously with due diligence, preferably within 60 days.
The above litigation had ultimately led to the passing of the impugned order, the IHC said, referring to the ECP's February 9 order for Vawda's disqualification.
Citing previous cases of similar nature, the IHC observed that "it is indeed a settled law that when a citizen of Pakistan has acquired the citizenship of a foreign state, the latter shall not be qualified to be elected or chosen or being a member of the Majlis-i-Shoora (parliament) until and unless such legal status i.e. being a citizen of a foreign state was obliterated or extinguished."
"Mere initiation of the process of relinquishment was not sufficient because disqualification would remain operative till the completion and conclusion of the process. The critical date for being qualified to be a member of the Majlis-i-Shoora (parliament) was the date when the nomination papers were filed," the order read. "As a corollary, the process of relinquishment of the foreign nationality should have been completed and concluded before submission of the nomination papers."
The IHC concluded that "it is obvious from the record and the events described in the impugned order, dated 09-02-2022, that the conduct of the petitioner remained contumacious over a long period of time."
"He kept delaying the proceedings before this court as well as the commission. He refused to submit a renunciation certificate issued by a competent authority of the foreign State."
The onus to establish his bonafides by producing a certificate of renunciation of his foreign citizenship issued by a competent authority was on him, the court stated, adding that in order to avoid the quo warranto proceedings, which were pending before this court, he resigned as a member of parliament.
"For what has been discussed above, the court has not been able to persuade itself that the impugned order, dated 09-02-2022, suffers from any legal infirmity requiring interference. The petition is, therefore, accordingly dismissed, " the order read.
The court also stated in its judgement that "it is not a pleasant duty to be called upon or to refuse to examine and exercise powers of judicial review, which may lead to an elected representative being disqualified as a member of the Majlis-e-Shoora (parliament)," and that while exercising or refusing to exercise judicial review, the courts claim no supremacy over organs that represent the people of Pakistan.
But "the petitioner’s conduct has led to the disqualification of an elected representative and, regrettably, he alone is responsible for the consequences," it said.
Earlier on Wednesday, the IHC had reserved its verdict on Vawda's petition.
His petition had argued that the ECP lacked jurisdiction to invoke Article 62(1)(f) of the Constitution and to disqualify him for life since it was not a court of law. While referring to the IHC order on his previous petition against the ECP proceedings, he stated in his appeal that the commission was directed by the court to “probe the issue of falsity or otherwise of the affidavit expeditiously as per a judgement of the Supreme Court”.
Vawda claimed that the ECP was only required to probe the matter of the affidavit, arguing that the probe could not be used to confer the jurisdiction that only a court possessed under Article 63 (1) (f) of the Constitution.
The PTI leader in his appeal stated that Section 8C of the Elections Act, 2017 allowed the ECP to conduct an election but did not empower it to disqualify a candidate. Also, he added, the Act gave limited power to the ECP to exercise the powers of a tribunal for a period of 60 days after the election of a constituency.
Justice Minallah presided over the hearing on the plea's maintainability today in which Vawda's lawyer, Wasim Sajjad, narrated the arguments made in the petition.
At this, the IHC chief justice told Sajjad that instead of giving technical arguments, "tell us the facts."
"What did the ECP do wrong?" Justice Minallah questioned, adding that the apex court had already explained consequences would have to be borne if an affidavit proved to be false.
Sajjad claimed that his client did not deliberately submit a false affidavit.
At this, the judge asked why a certificate of renunciation of citizenship was not provided. "This court shows restraint in the cases of elected representatives. Tell the court who should have inquired if not the Election Commission," the judge asked the lawyer, to which the lawyer agreed that the ECP was within its right to inquire.
Justice Minallah asked Vawda's lawyer what the ECP could have done after determining the affidavit was false and should it have sent the matter to the apex court for a contempt case since the SC had already given a verdict about false affidavits.
When Sajjad argued that the apex court had not pointed out what consequences in particular would entail, Justice Minallah responded: "The SC has clearly written that contempt proceedings will begin."
Vawda's lawyer replied that the SC verdict did not use "contempt of court" in particular, prompting the judge to point out the apex court's verdict was law and had been the cause for the disqualification of other lawmakers as well.
The judge asked if Vawda could present evidence of his US nationality's renunciation by tomorrow, to which the lawyer said he would have to check.
Sajjad maintained that Vawda had fulfilled his responsibility in accordance with the law such as getting his second passport cancelled and acquiring a certificate from the National Database and Registration Authority saying that he was now only a Pakistani citizen.
"The court is right on the legal side that if the affidavit turns out to be false, then disqualification occurs," Sajjad said, adding however, that his client did not lie intentionally.
Vawda had secured the National Assembly seat (NA-249) in the July 2018 general elections by narrowly defeating PML-) President Shehbaz Sharif. Two years later, a complaint filed before the ECP against his election stated that he was holding dual nationality at the time of filing the nomination papers. Subsequently, a petition seeking his disqualification was filed before the IHC. Vawda frequently sought adjournments from the ECP and the IHC on different pretexts before finally resigning from the National Assembly’s seat in 2021.
The IHC did not disqualify him as he had already resigned from the assembly but warned of consequences for submitting a false affidavit.
However, when he got elected as a senator last year, he faced another complaint of concealing his dual nationality in 2018. He then moved the IHC against the ECP proceedings.
Chief Justice Minallah who had heard his petition then directed the ECP to conclude the proceedings on the complaint to ascertain as to whether the lawmaker was a dual national at the time of filing of nomination papers.
Justice Minallah had dismissed his petition on November 12 while allowing the ECP to proceed against the PTI senator.
In the Nov 12 order, the IHC chief justice had observed that if the ECP found anomalies in Vawda’s declaration, he might be proceeded against for contempt of court, as a five-member Supreme Court bench had declared that filing a fake affidavit before the returning officer would be contemptuous and besides disqualification, it would entail penal consequences.