ISLAMABAD: The country’s top court dismissed a petition seeking disqualification of senior politician and Awami Muslim League (AML) chief Sheikh Rasheed.
A three-member bench, headed by Justice Sheikh Azmat Saeed and comprising Justice Qazi Faez Isa and Justice Sajjad Ali Shah, had reserved the verdict on March 20 on an appeal of Pakistan Muslim League-Nawaz (PML-N) member Shakeel Awan, who lost the 2013 elections at Rawalpindi’s NA-55 constituency against Rashid.
In his petitioner, Awan had sought lifetime disqualification for Rasheed for misdeclarations of assets.
The 2-1 decision was read out by Justice Saeed. In his dissenting note, Justice Isa recommended constitution of a bench, preferably a Full Court since every judge has heard election disputes thereby acquiring knowledge to help decide questions of law raised by the appeal. The questions outlined by Justice Isa include are as following:
Does every non-disclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?
If a petition does not disclose the particular facts, on the basis of which disqualification is sought can these be considered when subsequently disclosed in the affidavit in evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal or court?
Does Article 225 of the Constitution exclude the application of Article 184(3) of the Constitution to election disputes?
If the answer to the foregoing question is in the negative then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the ‘enforcement’ of a fundamental right and if so can it be determined under Article 184(3) of the Constitution?
If the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3) of the Constitution?
Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184(3)?
If a candidate is disqualified on account of non-disclosure or misdeclaration does such disqualification subsist only till the next election or is it permanent?
“We must make every effort to dispel any impression that different persons are treated differently. Justice must not only be done but be seen to be done too. Every endeavour therefore should be made to resolve the prevailing legal uncertainty,” observed Justice Isa.
Justice Saeed, however, while authoring majority opinion said he was unable to append signatures of concurrence as the minority opinion suggested that the decision of the instant appeal be deferred till the questions as raised and enumerated are adjudicated by the Full Court.
“Such exercise, if undertaken, is unlikely to be completed before the proposed general elections. Election disputes at the stage of scrutiny of the nomination papers and subsequent proceedings before the Election Tribunals, high court and top court are integral part of the election process both legally and politically.”
Justice Saeed noted that if Justice Isa’s suggestions were followed then all the election disputes, which will inevitably crop up before Returning Officers (RO), tribunals and high court and SC would also not be adjudicated upon till the decision of said appeal since the disputes more often than not revolve around the questions raised by Justice Isa.
“In such circumstances, the very validity of the proposed General Elections of 2018 would become questionable and the acceptance of its result by the participants almost impossible.”
