Islamabad:
The Pakistan Tehreek-E-Insaf (PTI) seems to be less and lower legal siege as a growing number of their legislators face the disqualification of several positions, many of the cases related to May 9.
The wave of disqualifications has caused concern among legal experts that argue that the process may be to avoid constitutional procedures and the erosion of democratic norms.
Although it is not unprecedented, the disqualifications are overlooking the route established in article 225 of the Constitution, which establishes that no election of the National or Provincial Assembly can be challenged, except through an electoral request presented before an electoral court.
Since the restoration of the judges in March 2009, legislators have been revealed by the Superior Judicial Power, particularly the Supreme Court under the former president of the Supreme Court Iftikhar Muhammad Chaudhry, in reasons such as having false and dual nationalities. Even former Prime Minister Yousuf Raza Gilani showed the door in a contempt.
During the mandate of the former president of the Supreme Court Mian Saqib Nisar, a series of PML-N legislators also faced disqualification. In particular, former Prime Minister Nawaz Sharif was disqualified under article 62 (1) (f) of the Constitution. Subsequently, PML-N Neha hashmi leaders, Talal Chaudhry and Daniyal Aziz were disqualified in contempt procedures.
Two PML-N senators were also unleashed to celebrate dual nationalities when presenting their nomination documents.
Now, it is PTI’s turn in the hot seat. Until now, four PTI legislators, two amn, a senator and a MPA, have been disqualified due to sentences related to the disturbances of May 9.
The founder of PTI, Imran Khan, was sentenced in three separated cases before the 2024 general elections, effectively prohibits surveys. Recently, the president of the PTI, the lawyer Gohar Ali Khan, expressed concern that up to 39 more legislators could face disqualification for similar positions in the coming months.
The Pakistan Electoral Commission (ECP) has also jumped to the fray. Acting on the references sent by the president of the National Assembly, the process of unraveling PTI Mna has begun.
More recently, Jamshed Dasti de PTI was disqualified by the ECP for not revealing assets in his nomination documents. The commission is now reviewing the eligibility of the opposition leader in the NA, Omar Ayub.
During the mandate of the former president of the Supreme Court Qazi Faez Isa, the ECP was allowed to carry out counts in three constituencies, which led to the detachment of two PTI legislators.
‘Premature movement’
The former additional attorney general Waqar Rana criticized the movement of ECP as premature. “The most appropriate interpretation of article 63 (1) (g) is that the Electoral Commission cannot do it on its own after a member has lent the oath of the position.”
He argued that only a speaker reference can be disqualified from this type, and that also after the conviction is confirmed by the highest court.
“Indira Gandhi was disqualified by the court, but in appeal, the sentence was suspended by the Supreme Court of India in 1975, and she continued to serve as a member and prime minister,” he said.
Waqar Rana raised a question: yes, in appeal, the conviction is canceled, how can a person disqualify? The other question is: how has the ECP assumed that the convictions will remain in the appeal?
“It is tragic for the ECP to continue undermining the democratic process,” he added.
Another lawyer said that article 225 of the Constitution has become redundant, and added that only the electoral courts have jurisdiction to occupy such matters.
Previously, the parliamentarians belonging to the PPP and the PML-N were being sent home through the higher courts by the exercise of the QUO jurisdiction. Now, the ECP is doing the same with PTI legislators, without judgment.
Similarly, PTI’s lawyer, Abuzar Salman Niazi, said that the convictions of several PTI legislators by the Anti -Terror Court, Sargodha, are judgments issued by a court of first instance and have not yet reached the purpose.
It is a law resolved that an appeal constitutes a continuation of the trial and that the judgment of a court of first instance does not become definitive until all appeal resources are exhausted.
In the Pakistan Federation v. Gul Hameed Khan (PLD 1975 SC 254), the Supreme Court said that “the appeal process is essential for the administration of justice and a sentence in a court of first instance remains provisional until the conclusion of appeals.”
“Therefore, any action taken against PTI legislators before the provision of their appeals would be premature and legally unsustainable.”
Niazi said that the disqualification notification of the ECP, issued before the final award, constitutes a violation of the principles of natural justice and due process enshrined under article 10 of the Constitution.
In addition, ECP failure to provide legislators with the opportunity to listen before issuing disqualification notifications is a serious breach of procedural equity.
“Article 10a guarantees the right to a fair trial, and the principle of Audi Alteram Partm, that no person will be condemned not heard, is a cornerstone of administrative and judicial procedures. In Asad Ali Khan v. Province of Punjab (PLD 1986 SC 383), the Court has emphasized that” the right to be an essential part of the principle of justice and must be observed before justice and must be observed before justice and must be observed before justice and must be observed before justice and must be observed before justice and must be observed before justice.
“The denial of such rights of hearing causes the ECP action not only to be illegal but unconstitutional. In addition, these convictions do not fall within the scope of article 63 of the Constitution; therefore, the procedure followed by the ECP reflects an incorrect reading and incorrect application of the law.”
Finally, he added, the selective application of ECP judicial decisions raises serious concerns about its impartiality and commitment to the rule of law.
Although the ECP quickly acted to implement the decision of the Court of First Instance against PTI legislators, it has failed to enforce the binding sentence of the largest bank of the Supreme Court with respect to the reserved seats for more than a year.
He argued that such selective and inconsistent conduct undermines public confidence in the institution and violates the principle of equality before the law guaranteed in article 25 of the Constitution.
“As remained in Judge Qazi Faez Isa v. Federation of Pakistan (2014 SCMR 1272),” The holiness of constitutional bodies depends on their neutrality, justice and adherence to the rule of law. “The current behavior of the ECP is short of these constitutional expectations and requires an immediate rectification,” he added.
A bank of three judges of the Superior Court of Lahore will occupy today the case of disqualification of Dasti (Wednesday).
Meanwhile, judgments related to May 9 have accelerated after a directive of the Supreme Court that requires the conclusion of all these procedures within four months.
Legal observers argue that courts have often allowed powerful circles to shape political results by rapidly monitoring the judgments against the selected parties, first the PML-N during the case of the Panama papers, and now the PTI in the cases of May 9.
Once, the Apex court ordered accelerated NAB procedures against the Sharif family; Now, the same court, under the CJP Yahya Afridi, has ordered ATC to conclude the trials of May 9 within a similar narrow deadline.
