ISLAMABAD: The Supreme Court has been moved to set aside the Election Commission of Pakistan (ECP)’s order that declared that the Pakistan Tehreek-e-Insaf (PTI) dissidents, who voted for PML-N leader Hamza Shehbaz as Chief Minister of the Punjab, have ceased to be the members of the Punjab Assembly.
The ECP on May 20 had cancelled the membership of 25 PTI dissidents as member of the Punjab Assembly over defection.
Zahara Batool, a PTI dissident member, on Monday, filed an appeal against the ECP’s order dated 20-05-2022 to disqualify her and other PTI MPAs. She cited the ECP, Chairman PTI Imran Khan, Muhammad Sibtain Khan, MPA, Parliamentary Leader in the Punjab Assembly, and General Secretary PTI Asad Umar as respondents.
The petitioner contended that directions were issued not as per Article 63A and no show-cause notice was issued. The issuance of formal direction by the party head is one of the pre-requisites for making a declaration under clause (b) (i) of Article 63A. Issuance of direction before making a declaration is mandatory and not directory.
She stated that there is a distinction between the party head and the parliamentary party. The party head denotes a single member, while the parliamentary party constitutes a number of members of the party. Direction is required to be issued by the parliamentary party and not by the party head.
Zahara submitted that in the present case no directions of the parliamentary party with respect to the election of the chief minister of the province were issued. There was no communication of the decision of the parliamentary party or party head. No meeting was arranged nor communicated to the petitioner.
She stated that Article 63A (b) is not automatic, but dependent upon the fulfilment of mandatory conditions as laid down in the Article. She maintained that the election of Chief Minister was scheduled on 03-04-2022 and purported show-cause notices were issued on 02-04-2022 in pursuance of alleged directions, which could not be delivered until 03-04-2022.
Another notice/ letter was purportedly issued by Asad Umar, which was also not clear about the meeting of the parliamentary party and the minutes of the meeting was only allegedly forwarded to Sibtain Khan which shows that the minutes were not circulated to all the respondents.
In the absence of any directions, the alleged defection against the respondents is not covered by clause (b) (i) of Article 63A. She submitted that the Supreme Court recent judgment (PLD 2018 SC 97) in unequivocal words held that issuance of formal directions followed by show-cause notice and opportunity of hearing is a mandatory pre-requisite before making of a declaration under Article 63A.
No opportunity of a hearing was provided to the petitioner before making a declaration. The petitioner has her rights protected under Article 10-A of the Constitution. It said that the documents enclosed with the rejoinders cannot be admitted into evidence nor relied upon as mentioned in PLD 2022 SC 99.
The affidavits filed with the rejoinders along with minutes of meeting do not constitute evidence in terms of Article 76 of Qanun-e-Shahadat Order 1984 and the ECP cannot admit or rely upon them. In the absence of directions from the parliamentary party, the petitioner was not bound to vote for Pervaiz Elahi, and no such directions were issued not to vote for any other candidate.
The show-cause notice was never issued to the petitioner, and nothing is available on record about the service of show-cause notice to the petitioner. In the absence of show-cause notices all other proceedings encompassing the subsequent declarations are of no avail, adding no reasonable time was given for reply and hearing to the respondent.
She stated that there is no proof of alleged meeting of the party head, issuance of alleged show-cause notices, and other documents were never enclosed with the declarations.
Filling documents at a belated stage is an afterthought and fabrication.
Copyright Business Recorder, 2022