ISLAMABAD: The Election Commission of Pakistan (ECP) on Tuesday notified Nisar Ahmed Khuhro as the winning senator of the Pakistan Peoples Party- Parliamentarians against a general seat from Sindh until March 2027, but explained that the notification would be subject to the outcome of a case pending before the Supreme Court.

While the counsel for former lawmaker and ruling Pakistan Tehreek-i-Insaf (PTI) stalwart Faisal Vawda, Wasim Sajjad, requested the Supreme Court to suspend the ECP notification, the three-member bench headed by Chief Justice of Pakistan Umar Ata Bandial declined to intervene, noting that the notification about PPP leader’s victory was ‘temporary’ and emphasised that Mr Khuhro, being a necessary party in the matter, should also be made part of the case.

Mr Khuhro’s notification was issued under Section 124 of the Elections Act 2017 at a time when the CJP-led bench was hearing Mr Vawda’s challenge to the ECP order of Feb 9, 2022, which rendered him ineligible for life to become a member of parliament again.

At a previous hearing, while rejecting the request of Mr Vawda’s lawyer to stay the March 9 Senate election on the seat that fell vacant after the ECP order about his disqualification, the Supreme Court had declared that the result of the election would remain subject to the outcome of the decision in the Vawda case.

Court wants PPP leader to become party in Vawda case

Appearing before the apex court, counsel for the ECP Barrister Sajeel Shaharyar Swati sought more time to furnish a concise statement on the petition, explaining that the commission had engaged him on Monday after receiving a notice of the case on Saturday last.

At the hearing, the SC bench again observed that the way former lawmaker Vawda had furnished his ‘false’ affidavit to claim he was not a dual national at the time of filing his nomination papers for the 2018 general elections would have a ‘serious consequence’.

In his appeal, Mr Vawda had pleaded that the ECP had given no grounds or reasons for invoking Article 62 (1)(f) of the Constitution to disqualify him for life. The ECP appeared to have an impression that any person disqualified under Article 63 (1)(c) of the Constitution (for having dual nationality) would automatically be penalised under Article 62 (1)(f), the petitioner argued, while claiming that this was incorrect.

To incur penalty under Article 62 (1)(f), there must be ‘mens rea’ as well as evidence before a court of law, the petitioner contended, stating that both were missing in the ECP declaration.

According to the appeal, the ECP had disqualified the ex-senator for life under Article 62 (1)(f), though the Supreme Court had in the 2021 Allah Dino Bhayo case held that the ECP was not a court of law within the context of Article 62(1)(f). Also, in the 2022 Mohammad Sulman case, the Supreme Court had held that the ECP had no jurisdiction either under Article 218(3) of the Constitution or under Section 9(1) of the Elections Act 2017 to deal with the matter of qualification or disqualification of a returned candidate, it said.

Thus, Mr Vawda argued, the Feb 9, 2022 order of the ECP clearly negated the assumption of jurisdiction by the commission to disqualify him for life. According to him, the ECP also ignored Article 225 of the Constitution under which no election to a House or the provincial assembly could be called in question, except by an election petition presented to a tribunal.

Published in Dawn, March 16th, 2022