Abbottabad nazim sent packing

ECP had already denotified nazim and 20 councillors for defecting from PTI to PML-N

ABBOTTABAD/ ISLAMABAD: The Abbottabad District Nazim along with 20 councillors from nearby areas were de-seated by the apex court for defecting from their party.

The top court also declared that no action of the Election Commission of Pakistan would be called into question on the ground that a member was missing from any meeting.

A three-judge bench of the Supreme Court of Pakistan, headed by Chief Justice of Pakistan Mian Saqib Nisar, pronounced its judgment on Wednesday over several legal questions relating to local bodies of Khyber-Pakhtunkhwa (K-P) as it upheld a decision by the top poll body to de-seat Abbottabad Nazim Sardar Sher Bahadur and 20 other local government representatives from Abbottabad and Havelian Tehsils.

Three directly elected councillors from Abbottabad district including Bahadar, Naib Nazim Shoukat Tanoli and Nazeer Abbasi were members of the Pakistan Tehreek-e-Insaf (PTI). Before the local government polls, they hatched a deal with Pakistan Muslim League-Nawaz (PML-N). Though they contested as independents, Bahadur was elected as nazim and Tanoli as the naib nazim with support from the PML-N. They defeated PTI’s official nominees Ali Khan Jadoon and Waqar Nabi for the slots in the process.

After the PTI decided to take action against them, the Election Commission of Pakistan (ECP) de-notified them. However, the local government representatives challenged the poll body’s decision in the Peshawar High Court and later in the Supreme Court.

The chief justice, while authoring the judgment, observed that while Article 219 of the constitution prescribes the duties of the Election Commission of Pakistan (ECP) and Article 220 of the Constitution mandates the executive authorities to assist the poll body in the discharge of its functions; however, the mode and procedure which the ECP must adopt has not been elaborated in the Constitution.

“The ECP is comprised of five members but nowhere it has been provided that any decision of the ECP shall be taken by all of its five members. Contrary to it, in Section 8(2) of the Order, 2002 any order passed by the ECP by lesser members of its total strength has been protected by specifically proving that no action is taken or thing done by the ECP shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof,” the court observed.

The SC held that orders of the ECP dated January 25, 2016, and October 29, 2015 — which were passed by three of its members — to declare that the district nazim and councillors had defected, had been validly passed.

Other questions which the bench addressed included who had the authority, within a political party, to nominate a candidate for the seats of Nazim or Naib Nazim and direct its members to cast votes in favour of that candidate. And who, in the event of violating that directive, can issue a show-cause notice and then pass a declaration of defection against such member.

The court observed that this was answered by Section 78-A wherein it provided that if a member of a party votes or abstains from voting in a council contrary to any direction issued by the political party, of which he is a member, in relation to election of the Nazim or Naib Nazim, the party head may in writing declare in writing that the member in question had defected from the party.

The party head may then forward a copy of the declaration to the presiding officer of the concerned council and the Chief Election Commissioner.

The verdict, however, noted that it the section also provides that the party head shall provide such a member with an opportunity to explain why such a declaration may not be issued against him.

“However, as per definition clause, the “party head” means any person, by whatever name called or declared as such by the party and included the nominee of the party head.”

Thus, the order noted, the authority to issue a show-cause notice, to consider any reply to such a notice and to declare a member to have defected, lies with the party head. However, this authority can be vested with any nominee of the party chief.

Moreover, the section makes it evident that every member of a political party was bound to follow the directions issued by the party or the party chief, not only with regard to casting the vote or to abstain from voting in the election of a nazim or naib nazim, but also with regards to votes of confidence or no-confidence and the approval of the annual budget.

Published in The Express Tribune, December 21^st, 2017.