‘Election year’ weighs heavy in LHC verdict

Setting aside the Election Commission of Pakistan’s (ECP) decision accepting the PTI MNAs resignations, the Lahore High Court has held that relinquishing a parliamentary seat through a resignation “is a grave and solemn act and must not be taken lightly and casually”.

"Another factor, which would impact the impugned notifications and which ought to have been considered in the peculiar circumstances of the case, is that the year 2023 is an election year and very little time would intervene between the acceptance of resignations and holding of fresh elections,” says a 25-page judgment authored by LHC Judge Justice Shahid Karim, while allowing the petition filed by PTI lawmakers against acceptance of their resignation through Ali Zafar advocate.

“Will it be sensible for huge funds to be expended on by-elections to the 123 National Assembly seats. There are circumstances of which judicial notice may be taken that the federal government suffers from severe financial and economic constraints and it would not be a proper exercise of discretion to accept the resignations at this juncture which would put enormous pressure on the public exchequer.

“In the ultimate analysis, the people of Pakistan would have to suffer on this account who would ultimately bear the economic brunt. This may not have been a conclusive factor yet the Speaker National Assembly in his political wisdom could have abstained from accepting the resignations while taking into account this additional factor," read the judgment.

The judgment notes that the National Assembly speaker “shall complete the process of inquiry” initiated by him. “He shall call upon the petitioners personally and for the purpose two opportunities would be provided to each petitioner to appear before the speaker for verification of their resignations.”

“A clear inference not only from a reading of rule 43 of the 2007 Rules as well as the precedents of the superior courts is that while taking any decision the Speaker National Assembly shall pass an order which would reflect application of mind on each individual resignation with regard to which the inquiry is conducted by him.

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“It is also made clear that the petitioners may withdraw the resignations before the inquiry is concluded and this opportunity shall be afforded to each member by the Speaker National Assembly at the very outset.”

"This is in consonance with the holding of Islamabad High Court in Syed Zafar Ali Shah, on which the Speaker has relied upon himself. The petitioners my also signify their intent to retract/withdraw the resignations by informing the Secretary, National Assembly in writing whereupon the Secretary shall make arrangements for them to attend the sittings of the National Assembly as members.Thereupon the resignations shall become ineffective."

The judgment also held that the notifications challenged in the petitions and issued by the secretariat of the National Assembly purportedly having been issued with the concurrence of the National Assembly speaker are held to be without lawful authority and of no legal effect having been issued in contravention of the provisions of the Constitution, the 2007 Rules of the National Assembly and the judgments of the superior courts.

"As a consequence, the impugned notifications issued by the ECP are also set aside having been issued without lawful authority."

The LHC, while referring to the Supreme Court’s1994 judgment said that it was the duty of the Speaker National Assembly to ascertain personally whether it was signed by the member who had resigned his seat, whether it was voluntary and whether it was intended to act as a resignation.

"Unless three requirements of the resignation were satisfied, it was dangerous to set down a general rule that the resignation must be accepted once it is received by the National Assembly speaker without more.

“None of the requirements of the resignations was fulfilled by the National Assembly speaker while accepting the resignations of the petitioners. Undoubtedly, the rights of the voters of the constituency are inextricably involved in the entire process."