A PTI defecting member of the Punjab Assembly has raised legal questions on the reference before the Election Commission of Pakistan (ECP) seeking his disqualification under Article 63-A of the Constitution.
A reply was submitted to the commission by defecting MPA, namely Salman Naeem, through his lawyer Muhammad Shahzad Shaukat, wherein the ECP was requested to dismiss the reference forwarded by PML-Q senior leader, Punjab Assembly Speaker Pervaiz Elahi, who was himself a candidate in the election for the Punjab chief minister.
The reply stated that the concept of a parliamentary party had altogether been overlooked by PTI Chairman Imran Khan and the PA speaker before undertaking manifestly the “illegal steps” culminating in the reference in question.
"The respondent very humbly contends that neither any direction of the parliamentary party, with respect to the election of the chief minister was ever issued, nor communicated to him at any stage whatsoever," it read.
"Ironically, the declaration also does not claim issuance of any such directions by the parliamentary party as mandated by Article 63A(1)(b) of the Constitution of Islamic Republic of Pakistan, 1973. On the contrary, it is been claimed that the alleged directions by Mr Imran Khan (falsely claimed to have been issued) were violated."
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The reply further stated that the declaration as well as the consequent reference had been issued and filed without examining the dictates of Article 63-A and the facts and circumstances of the case in which such a constitutional provision could be invoked.
The reply further stated that no directions whatsoever for casting vote in favour of Elahi were ever issued.
“[This] is established from the bare fact that not a single vote was cast in favor of Chaudhry Pervaiz Elahi till the conclusion of the election held on 16-4-2022.”
The reply also read that the alleged show-cause notice dated April 16, 2022 established that it was a stereotyped copy wherein the name of the respondent had been inserted in someone else’s handwriting.
“There is no address given in the said notice and no proof of transmission of such notice to the respondent has been attached.”
The reply stated that even the declaration did not claim that the show-cause notice was ever served upon the respondent.
“Even otherwise, there was neither any assertion nor proof that a hearing as ordained by the provisions of Article 63A(1) was ever extended to the respondent by the party head. As per the facts and circumstances of the case it is an established fact that the so-called show cause notice dated 16-4-2022 was neither issued nor got served upon the respondent.”
It further read that it was also established that no hearing was extended to the respondent as per the mandate of the Constitution and the unilateral declaration was mechanically issued in complete violation of the law.
"Yet another notice dated 7-4-2022 has also been attached with the reference in question whereby defection was attributed to the respondent on account of the alleged violation of the party policy on the basis of a gathering at a private hotel on 6-4-2022 as also on the basis of negative criticism damaging the image of the party. Even the said notice was neither issued, nor got served upon the respondent."
It is also brought to the notice of the ECP that the reference by the PA speaker was clearly tainted with mala fide in as much as he himself was a candidate for the post of the chief minister and thus was inherently disqualified from transmitting the reference in question to this commission.
"Ex-facie, the Speaker was precluded from transmitting the declaration while endorsing the same on the basis of the settled Maxim Nemo iudex in causa sua ‘no-one is judge in his own cause’.”
It is emphasised that the respondent and all other elected members of the assembly represent hundreds and thousands of people of their constituency and thus deserve to be included in some sort of consultative process.
"The respondent seriously apprehends that upon filing of the reply, efforts will be made to manufacture documents in order to somehow justify the declaration and the consequent reference filed by an interested person in complete disregard of law. It goes without saying that the respondent got elected as an independent candidate after defeating the PTI candidate Makhdoom Shah Mahmood Qureshi and cannot be said to be the one who had been elected with the support of or on the manifesto of the PTI.”
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