PHC stops Election Commission from issuing schedule for NA by-pollsArchive
PESHAWAR: The Peshawar High Court on Wednesday issued a stay order stopping the Election Commission of Pakistan from issuing the schedule for by-elections to fill 10 National Assembly seats in Khyber Pakhtunkhwa, which had fallen vacant following the acceptance of the resignations of the respective Pakistan Tehreek-i-Insaf MNAs.
A bench consisting of Justice Ishtiaq Ibrahim and Justice Syed M. Attique Shah issued notices to the ECP and NA speaker seeking their response to a petition of those ex-lawmakers against the acceptance of their resignations on Jan 22 and de-notification on Jan 25.
The petitioners, who included six women elected on reserved seats during the 2018 general elections, requested the court to strike down the two notifications issued by the ECP and NA speaker by declaring them unlawful and of no legal effect.
The petition was filed by former MNAs Anwar Taj from NA-23 Charsadda, Mohammad Yaqoob Sheikh from NA-39 Dera Ismail Khan, Gul Zafar Khan from NA-41 Bajaur, Jawad Hussain from NA-47 Orakzai, and women MNAs Nafeesa Inayatullah Khan Khattak, Sajida Begum, Noreen Farooq Khan, Uzma Riaz, Zille Huma and Shaheen Naz Saifullah.
Seeks response to plea against acceptance of MNAs’ resignations, de-notification
Barrister Gohar Khan appeared for the petitioners and requested the court to declare the acceptance of the resignations of his clients by the speaker a violation of the law settled by the Supreme Court in earlier judgements.
He said without fulfilling legal requirements, the NA speaker first unlawfully accepted resignations of 35 of the MNAs and issued a notification on Jan 17 and accepted resignations of 35 other MNAs on Jan 20 and accepted resignations of 43 others, including the present petitioners, on Jan 22.
The lawyer contended that under Article 64 of the Constitution, the speaker while receiving the letter of resignation from a MNA had a duty to ascertain personally whether it was signed by the relevant lawmaker, whether it was voluntary, and whether it was intended to act as a resignation.
He pointed out that two identical petitions of 24 former MNAs of PTI, whose resignations were accepted by the speaker on Jan 17 and Jan 20, were also pending with the court.
The counsel said the high court issued a stay order on the two petitions on March 3 stopping the ECP from holding by-polls on the 24 NA seats for which polling was scheduled to be held on March 16 and 19.
He requested the court to issue a stay order for the instant petition as well and stop the ECP from issuing an election schedule for filling the 10 NA seats in question.
RESPONSE SOUGHT: The bench directed the ECP to respond to a joint petition of three former PTI MNAs against the April 30 by-elections for three National Assembly seats of KP.
The petitioners, including Ali Mohammad Khan from NA-22 Mardan, Fazal Mohammad Khan from NA-24 Charsadda and Shaukat Ali from MNA-31 Peshawar, formally requested the court to declare unconstitutional by-polls in the three constituencies insisting that since the term of the National Assembly will expire on Aug 14, polling can’t be held for those seats within 120 days of the expiry of that date.
The counsel for petitioners, Barrister Gohar Khan, contended that Article 224(4) of the Constitution declared that if a National Assembly general seat fell vacant 120 days before the term of that assembly expired, it should not be filled.
He said the three NA seats- NA-22 Mardan, NA-24 Charsadda and NA-31 Peshawar, were declared vacant along with three other seats of National Assembly from Punjab by the ECP through a notification on Feb 24.
The six seats along with another from NA- 45 Kurram were won by former prime minister and PTI chief Imran Khan during the Oct 2022 by-polls.
However, as Mr Khan could retain just one NA seat under the Constitution, the ECP de-notified him for the six seats.
The three seats were earlier declared vacant after the NA speaker accepted the resignations of the three petitioners leading to by-polls on Oct 16, 2022.
Barrister Gohar contended that the holding of by-elections was not only a violation of Article 224(4) of the Constitution but election of MNAs for such a short period was only a waste of government funds as well.
Published in Dawn, March 30th, 2023