Constitutional law: Khosa’s status as senator questioned

Experts, rivals say ECP has violated Constitution by scheduling by-poll.

LAHORE:

Constitutional experts and political rivals of Sirdar Zulfiqar Khan Khosa have raised concerns about the legal validity of the Election Commission of Pakistan’s (ECP) decision to schedule a by-election at PP-243 DG Khan, the seat Khosa won in the general elections.

On May 22, the ECP issued a gazette notification declaring Khosa the winner at PP-243. But two days later, it issued another notification deleting the previous notification, without explaining why. And on June 28, it scheduled a by-election at PP-243 for August 22.

But under the Constitution Khosa, upon being elected to PP-243, automatically forfeited his Senate seat, said Supreme Court Advocate Muhammad Azhar Siddique.

Clause 4 of Article 223 of the Constitution states: ‘Subject to Clause 2, if a member of either house or of a provincial assembly becomes a candidate for a second seat which … he may not hold concurrently with his first seat, then his first seat shall become vacant as soon as he is elected to the second seat.”



Clause 2 states that a person may run for two seats in different bodies at the same time, but if elected to more than one seat, she must resign all but one of her seats within 30 days of the declaration of results.

Siddique said that Clause 2 only applied to persons who contested and won more than one seat at the same time. Khosa had already served as senator for a year, so Clause 2 did not apply to him, he said.

“The constitutional interpretation of Article 223 is very clear: when he [Khosa] was elected as a member of the provincial assembly, his Senate seat became vacant immediately,” he added.

Khosa’s position as occupier of the PP-243 seat remains intact and he may take oath as an MPA at any time because the Third Schedule of the Constitution, which pertains to oaths of office, sets no time limit for when a member must be sworn in, said Siddique.

Rather than schedule a by-election for the Punjab Assembly seat, the ECP should have scheduled a by-election for his Senate seat, he said. Any violation of Article 224, which outlines the procedure for general elections and by-elections, by the ECP would have serious consequences, Siddique added.

He said JUI-F’s Senator Maulana Sherani, like Khosa, had run for a seat in the May 11 election and had been voted in as an MNA from Balochistan. Sherani moved to the National Assembly and the ECP scheduled a by-election for his vacant Senate seat.

Khosa was not available for comment, but his son Hissamuddin Khosa told The Express Tribune that his father had written to the ECP on or around May 18, before its initial notification of his victory at PP-243, asking that he be withdrawn from the election process. His father, he said, had in effect resigned his Punjab Assembly seat in favour of his Senate seat, after which there had to be a by-election at PP-243.

Siddique maintained that the Constitution did not allow Khosa to choose which seat he kept. And if he had withdrawn from the PP-243 seat in a letter to the ECP on May 18, the next step was for the ECP to declare the runner-up successful, rather than schedule a by-election. He said that the Election Commission’s deletion of the gazette notification had no precedent.

Awais Khan Leghari finished second in the PP-243 election, but he also ran at and won a National Assembly seat and has been sworn in as an MNA. The PTI’s Sirdar Ahmed Ali Khan Dareshak finished third. Siddique said that Dareshak had a right to take the PP-243 seat.

Dareshak told The Express Tribune that he would move the courts against the ECP’s action.

Leghari, who is also with the PML-N but has a longstanding political rivalry with the Khosas, said that the Election Commission had violated the Constitution and he had raised the matter with the body. “The ECP is confused,” he said.

By withdrawing from his PP-243 seat, he said, Khosa had given up his only seat. He too said that the runner up in the election should now be declared the winner. “It is unfortunate that the ECP, which has a reputation as independent, has come under pressure from Khosa,” he said.

Asked for comment, the provincial election office referred The Express Tribune to Deputy Director (Elections) Shabbir, who sits in Islamabad. He said the ECP had withdrawn the notification of Khosa’s election to PP-243 upon Khosa’s request, which had been made within the stipulated time period. Before he could be questioned further, Shabbir said he did not have time and hung up, then switched off his cell phone.

Published in The Express Tribune, July 2^nd, 2013.