ECP out on a disqualification spree

Express Tribune

6 days ago

The Pakistan Tehreek-e-Insaf (PTI) appears to be increasingly under legal siege as a growing number of its lawmakers face disqualification on various charges, many arising from May 9-related cases.
The wave of disqualifications has sparked concern among legal experts who argue the process may be circumventing constitutional procedures and eroding democratic norms.
Though not unprecedented, the disqualifications are bypassing the route laid out in Article 225 of the Constitution, which states that no election of the national or provincial assembly can be challenged except through an election petition submitted before an election tribunal.
Since the restoration of judges in March 2009, lawmakers have been unseated by the superior judiciary – particularly the Supreme Court under former chief justice Iftikhar Muhammad Chaudhry – on grounds such as holding fake degrees and dual nationalities. Even former prime minister Yousuf Raza Gilani was shown the door in a contempt case.
During the tenure of former chief justice Mian Saqib Nisar, a string of PML-N lawmakers also faced disqualification. Notably, former prime minister Nawaz Sharif was disqualified under Article 62(1)(f) of the Constitution. Subsequently, PML-N leaders Nehal Hashmi, Talal Chaudhry and Daniyal Aziz were disqualified in contempt proceedings.
Two PML-N senators were also de-seated for holding dual nationalities at the time of filing their nomination papers.
Now, it is PTI's turn in the hot seat. So far, four PTI lawmakers – two MNAs, one senator, and one MPA – have been disqualified due to convictions related to the May 9 riots.
PTI founder Imran Khan himself was convicted in three separate cases before the 2024 general election, effectively barring him from contesting the polls. Recently, PTI Chairman Barrister Gohar Ali Khan expressed concern that up to 39 more lawmakers could face disqualification over similar charges in the coming months.
The Election Commission of Pakistan (ECP) has also jumped into the fray. Acting on references sent by the National Assembly speaker, it has begun the process of unseating PTI MNAs.
Most recently, PTI's Jamshed Dasti was disqualified by the ECP for failing to disclose assets in his nomination papers. The commission is now reviewing the eligibility of the leader of the opposition in the NA, Omar Ayub.
During the tenure of former chief justice Qazi Faez Isa, the ECP was permitted to conduct recounts in three constituencies, leading to the de-seating of two PTI lawmakers.
'Premature move'
Former additional attorney general Waqar Rana criticised the ECP's move as premature. "The most appropriate interpretation of Article 63(1)(g) is that the election commission cannot do it on its own after a member has taken the oath of office."
He argued that only upon a reference from the speaker can such a member be disqualified, and that too after the conviction is upheld by the highest court.
"Indira Gandhi was disqualified by the court, but on appeal, the sentence was suspended by the Indian Supreme Court in 1975, and she continued to serve as both a member and prime minister," he pointed out.
Waqar Rana posed a question: if, on appeal, the conviction is set aside, then how can you disqualify a person? The other question is: how has the ECP assumed that convictions will be maintained in appeal?
"It is tragic that ECP continues to undermine the democratic process," he added.
Another lawyer noted that Article 225 of the Constitution has become redundant, adding that only election tribunals have jurisdiction to take up such matters.
Earlier, parliamentarians belonging to the PPP and PML-N were being sent home through superior courts by the exercise of quo warranto jurisdiction. Now, the same is being done with PTI lawmakers by the ECP, without conducting a trial.
Likewise, PTI lawyer Abuzar Salman Niazi said that convictions of several PTI lawmakers by the Anti-Terrorism Court, Sargodha, are judgments delivered by a court of first instance and have not yet attained finality.
It is settled law that an appeal constitutes a continuation of the trial and that the judgment of a trial court does not become final until all appellate remedies are exhausted.
In Federation of Pakistan v. Gul Hameed Khan (PLD 1975 SC 254), the Supreme Court held that "the appellate process is integral to the administration of justice and a judgment in a trial court remains provisional until the conclusion of appeals".
"Therefore, any action taken against the PTI lawmakers prior to the disposal of their appeals would be premature and legally unsustainable."
Niazi said that the ECP's notification of disqualification, issued prior to final adjudication, constitutes a violation of the principles of natural justice and due process enshrined under Article 10A of the Constitution.
Furthermore, the ECP's failure to provide the lawmakers an opportunity to hear before issuing the disqualification notifications is a grave breach of procedural fairness.
"Article 10A guarantees the right to a fair trial, and the principle of audi alteram partem — that no person shall be condemned unheard — is a cornerstone of administrative and judicial proceedings. In Asad Ali Khan v. Province of Punjab (PLD 1986 SC 383), the Court emphasised that "the right to be heard is an essential part of the principle of natural justice and must be observed before any adverse order is passed."
"The denial of such hearing rights renders the ECP's action not only unlawful but unconstitutional. Moreover, these convictions do not fall within the ambit of Article 63 of the Constitution; therefore, the procedure followed by the ECP reflects a manifest misreading and misapplication of the law."
Lastly, he added, the ECP's selective enforcement of judicial decisions raises serious concerns about its impartiality and commitment to the rule of law.
While the ECP rapidly acted to implement the trial court's decision against PTI lawmakers, it has failed to enforce the binding judgment of the Supreme Court's largest bench regarding reserved seats for over a year.
He argued that such selective and inconsistent conduct undermines public confidence in the institution and violates the principle of equality before law as guaranteed under Article 25 of the Constitution.
"As held in Justice Qazi Faez Isa v. Federation of Pakistan (2014 SCMR 1272), "the sanctity of constitutional bodies depends on their neutrality, fairness, and adherence to the rule of law." The current conduct of the ECP falls short of these constitutional expectations and requires immediate rectification," he added.
A three-judge bench of the Lahore High Court will take up the Dasti disqualification case today (Wednesday).
Meanwhile, May 9-related trials have accelerated following a Supreme Court directive mandating the conclusion of all such proceedings within four months.
Legal observers argue that the courts have often allowed powerful circles to shape political outcomes by fast-tracking trials against selected parties — first the PML-N during the Panama Papers case, and now the PTI in May 9 cases.
Once, the apex court ordered expedited NAB proceedings against the Sharif family; now the same court, under CJP Yahya Afridi, has directed ATCs to wrap up May 9 trials within a similar tight deadline.