Islamabad:
Pakistan Tehreek-e-insaf (PTI) seems to be increasingly under legal siege, because an increasing number of its legislators are faced with disqualification on various accusations, many of which arise from cases linked to May 9.
The wave of disqualifications has aroused concerns among legal experts who argue that the process can bypass constitutional procedures and erode democratic standards.
Although they are not unprecedented, the disqualifications bypass the route presented in article 225 of the Constitution, which stipulates that no election of the National or Provincial Assembly may be disputed, except by an electoral petition subject to an electoral court.
Since the restoration of judges in March 2009, legislators have been not killed by the superior judicial power – in particular the Supreme Court under the former chief judge Iftikhar Muhammad Chaudhry – for reasons such as the holding of false diplomas and two nationalities. Even former Prime Minister Yousuf Raza Gilani was shown in a case of outrage.
During the mandate of former chief judge Mian Saqib Nisar, a series of PML-N legislators were also faced with disqualification. In particular, former Prime Minister Nawaz Sharif was disqualified under article 62 (1) (1) f) of the Constitution. Subsequently, the leaders of PML-N, Nehal Hashmi, Talal Chaudhry and Daniyal Aziz, were disqualified in the outrage procedures.
Two PML-N senators were also distraught for having held double nationalities at the time of filing their appointment documents.
Now it’s Pti’s turn on the hot seat. Until now, four PTi – two MNA legislators, a senator and an MPA – have been disqualified due to convictions linked to the May 9 riots.
The founder of the PTI, Imran Khan himself, was sentenced in three distinct cases before the general elections of 2024, actually preventing him from challenging the ballot boxes. Recently, the president of the PTI, lawyer Gohar Ali Khan, said he was concerned that up to 39 additional legislators could face disqualification for similar charges in the coming months.
The Pakistan Electoral Commission (ECP) has also jumped into the fray. Acting on the references sent by the speaker of the National Assembly, he began the process of relocating MNA PTI.
More recently, the Jamshed Dasti of PTI has been disqualified by the ECP for having omitted to disclose assets in its appointment documents. The Commission is currently examining the eligibility of the opposition chief in NA, Omar Ayub.
During the mandate of the former chief judge Qazi Faez Isa, the ECP was authorized to carry out recounts in three constituencies, leading to the dice of two PTI legislators.
“Premature displacement”
Former additional prosecutor Waqar Rana criticized ECP’s decision as premature. “The most appropriate interpretation of article 63 (1) g) is that the electoral commission cannot do it alone after a member has taken an oath.”
He argued that only a reference of the speaker can be disqualified, and that after conviction, the highest court is confirmed by the highest court.
“Indira Gandhi was disqualified by the court, but on appeal, the sentence was suspended by the Indian Supreme Court in 1975, and she continued to serve both as a member and Prime Minister,” he said.
Waqar Rana asked a question: if, on appeal, the conviction is canceled, then how can you disqualify a person? The other question is: How did the ECP assumed that the convictions will be maintained on appeal?
“It is tragic that ECP continues to undermine the democratic process,” he added.
Another lawyer noted that article 225 of the Constitution has become redundant, adding that only the electoral courts have jurisdiction to occupy such questions.
Earlier, parliamentarians belonging to the PPP and the PML-N were sent home through higher courts by the exercise of the jurisdiction quo warranto. Now, the same goes with the legislators PTI by the ECP, without carrying out a trial.
Likewise, PTI lawyer, Abuzar Salman Niazi, said that the convictions of several PTI legislators by the anti-terrorism court, Sargodha, are judgments rendered by a court of first instance and have not yet reached the purpose.
It is settled by law according to which an appeal constitutes a continuation of the trial and that the judgment of a court of first instance does not become final until all appeals on appeal are not exhausted.
In Pakistan Federation c. Gul Hameed Khan (PLD 1975 SC 254), the Supreme Court judged that “the appeal process was an integral part of the administration of justice and that a judgment before a court of first instance remains provisional until the end of the appeal”.
“Consequently, any measure taken against PTI legislators before the elimination of their calls would be premature and legally unbearable.”
Niazi said that the notification of the disqualification of the ECP, published before final arbitration, constitutes a violation of the principles of natural justice and a regular procedure devoted under article 10a of the Constitution.
In addition, the fact of not giving the legislators of the ECP an opportunity to hear before publishing the disqualification notifications is a serious violation of procedural equity.
“Article 10a guarantees the right to a fair trial, and the principle of Audi Alteram Partem – that no person will be sentenced unpublished – is a cornerstone of administrative and judicial procedures. In Asad Ali Khan v. Province of Punjab (PLD 1986 SC 383), the court underlined that the law is adopted.
“The refusal of these hearing rights makes the action of the ECP not only illegal but unconstitutional. In addition, these convictions do not fall under article 63 of the Constitution; consequently, the procedure followed by the ECP reflects a poor reading and a bad application of the law.”
Finally, he added, the selective application of judicial decisions by the ECP raises serious concerns concerning its impartiality and its commitment to the rule of law.
Although the ECP acted quickly to implement the decision of the court of first instance against the legislators of the PTI, it failed to apply the binding judgment of the largest bench in the Supreme Court concerning the seats reserved for more than a year.
He argued that such selective and inconsistent conduct undermines the public’s confidence in the institution and violates the principle of equality before the law as guaranteed under article 25 of the Constitution.
“Like Judge Qazi Faez Isa v. Pakistan Federation (2014 SCMR 1272)”, the sacred character of the constitutional bodies depends on their neutrality, their equity and their adhesion to the rule of law. “The current conduct of CEP does not become of these constitutional expectations and requires immediate rectification,” he added.
A bench of three judges from the High Court of Lahore will take over the Dasti disqualification affair today (Wednesday).
Meanwhile, the trials linked to May 9 accelerated following a Supreme Court directive demanding the conclusion of all these procedures within four months.
Legal observers argue that the courts have often allowed powerful circles to shape political results by accelerating trials against certain parties – first the PML -N during the Panama Papers affair, and now the PTI in the affairs of May 9.
Once the Apex Court has ordered an accelerated NAB procedure against the Shari family; Now, the same court, under the CJP Yahya Afridi, ordered ATC to conclude trials on May 9 in a similar tight period.
