The country’s top court has ruled that a returning officer (RO) – an official responsible for overseeing elections in one or more constituencies – cannot disqualify a lawmaker for the lifetime under Article 62(1) (f) of the Constitution.
“Since the forum of the returning officer lacks the attributes of a court of law therefore the electoral disqualification imposed on the review petition under Article 62(1)(f) of the Constitution ceased to be effective after the 18th Amendment,” said an 8-page judgment authored by Justice Umar Ata Bandial.
Justice Bandial issued the verdict as part of a three-judge bench of the Supreme Court which heard a review petition filed by a disqualified lawmaker Allah Dino Khan Bhayo.
In the judgment, the bench adjudicated as to whether an RO’s December 3, 2007 finding against Bhayo ahead of 2008 general elections is final and binding for the purpose of permanently disqualifying him from contesting any election.
During the summary proceedings held for scrutiny of Bhayo’s nomination papers, the RO had concluded that the equivalence certificate issued by Khairpur’s Shah Abdul Latif University for the petitioner’s madrassa degree was fake. He had disqualified Bhayo from contesting election from PS-12 Shikarpur-II.
In the wake of the RO’s order, the petitioner stepped out of the elections and did not challenge the finding. However, he contested in May 2013 general election and got elected as a member of the Sindh Assembly in the year 2013.
However, later a complaint was filed against him and the Election Commission of Pakistan (ECP) in exercise of its powers under Section 103-AA of the Representation of People Act, 1976 (Ropa) declared him disqualified under Article 62(1)(f) of the Constitution.
The ECP’s decision was based on the December 3, 2007 finding of the RO. The petitioner later challenged the said finding but an SC bench ultimately upheld the ECP order. The petitioner later filed a review petition against the order.
A three-judge bench led by Justice Bandial heard the review petition. In its judgment, it noted that a disqualification under Article 62(1)(f) can only be imposed by or under a declaration by a court of law.
“By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision.”
The court noted that it is evident that the summary finding given by the RO against the review petitioner in the year 2007 did not comply with the requirement laid out in Article 62(1)(f) as amended in the year 2010, namely a declaration by a court of law.
“This is because a RO does not record evidence in his proceedings which are summary in nature. His finding, unless set aside, is therefore valid only for the corresponding election.
“In these circumstances, the doctrine of res judicata would also be inapplicable to the finding of the RO because although the said finding remained unchallenged, the same was given without the recording of evidence including the right of cross examination.”
The judgment noted that according to the settled law, the amended provision of Article 62(1)(f) is effective prospectively from the date of its enforcement.
This provision governs all disqualification claims that arise after its promulgation in the year 2010. In the present case, disqualification of the petitioner was sought in the general election held in 2013 when a declaration by a court of law was necessary to attract the constitutional disqualification.
“On the other hand, the finding of the RO in the present case was rendered in 2007 prior to the amendment in Article 62(1)(f). Such a finding was not a verdict given after a trial by a court of law; namely, for the purposes of this case, an election tribunal or a court of plenary jurisdiction”
The court, however, clarified that a finding of dishonesty remains an ignoble impediment against the election of the petitioner. Therefore, it must be overcome by the petitioner if at any stage in the future he wishes to contest elections.
“An allegation of dishonesty based on the certificate of Shah Abdul Latif University rather than the finding of the RO dated 03.12.2007, may still be invoked against the petitioner.
“This would involve the allegation that the petitioner committed forgery in the year 2007 by falsely claiming his educational qualification to be equivalent to a graduation degree.”
As this allegation, it said, remains unchallenged by the petitioner, any aggrieved party can in future object before the competent forum that dishonesty of the petitioner is apparent from the university’s finding to the effect that he relied on a fake equivalence certificate for his sanad issued by a madrassa”
The court allowed review petition and recalled its observation regarding his disqualification for lifetime under Article 62(1)(f) of the Constitution.
Debate on applicability of Article 62
A section of lawyers believes that the court jurisdiction on election matters is inconsistent, confusing and conflicting. Since 2009, the apex court has initiated a process to disqualify lawmakers by exercising the jurisdiction of quo warranto.
When the apex court held that an RO could not disqualify any lawmaker under Article 62 (1) (f) through summary trial and without recording evidence then how the superior courts could do the same by exercising quo warranto.
However, a legal expert said the superior courts could disqualify a lawmaker on admitted facts in writ jurisdiction. He, however, added that in the presence of Article 225 of Constitution, the superior courts must show restraint to examine the eligibility of any lawmaker in quo warranto jurisdiction.
Two years ago, the SC evolved a jurisprudence wherein while exercising suo motu power, it could disqualify a lawmaker but on the other hand, an election petition against the same MNA or MPA might be rejected on technical grounds for not fulfilling the verification process.
Even in the Sheikh Rashid disqualification case, SC judge Justice Qazi Faez Isa had raised several questions about the quo warranto jurisdiction wherein the eligibility of lawmakers was being examined by the superior courts under Articles 184 (3) and 199 of Constitution.
Justice Isa questioned as to whether the superior courts could intervene in election matters in view of Article 225 of Constitution wherein it is held that they would only be challenged in election tribunals.
Legal experts have urged the SC to form a larger bench to settle all conflicts related to election matters. Even Justice Isa in the Sheikh Rashid case had raised seven questions in this regard. However, former CJP Mian Saqib Nisar had not formed a larger bench on that matter.
Justice Isa also said the scope of Article 225, which specifically dealt with election disputes, also needed to be considered and whether on the principle of the “specific excluding the general ” this article excluded resorting to Article 184(3) of the Constitution in respect of individual election disputes.
He also questioned if an election dispute could be categorized as a matter of “public importance” and which particular fundamental right stands infringed that needed “enforcement”.