ISLAMABAD: The Election Commission of Pakistan (ECP) has defended former interior minister Ch Nisar Ali Khan in a petition before the Lahore High Court (LHC) seeking his de-notification for not taking oath as a member of Punjab Assembly.

“There is no time limit for swearing in as legislator,” the ECP declared.

The ECP’s response to a notice issued by the LHC Rawalpindi bench has cleared the ambiguity related to the oath taking of a legislator.

Defends Chaudhry Nisar in a petition before LHC seeking his de-notification

Citing the relevant Rules of Procedure of the Assembly, the ECP pointed out that Rule 6(4) says: “A person elected to the assembly, who has not already made the oath under the provisions of sub-rule (1), may do so before the assembly at any time, subject to the prior intimation to the speaker or to the secretary.”

Interpreting this rule, the ECP is of the view that “from the bare perusal of abovementioned provisions of the constitution and procedure rules, it is abundantly clear that neither the constitution nor the Rules of Procedure of the Assembly fix any time limit for a member to swear in as legislator, it is the duty of the legislature to provide for the time limit and procedure / mechanism in this regard through necessary amendments in the law.”

The ECP further contended in the written reply that “Under Article 199 (1)(ii) of the constitution a writ can be issued by the high court against a person performing functions in connection with the affairs of the federation, province or a local authority to refrain from doing anything he is not permitted by law to do anything he is required by law to do…law is silent on this aspect and also does not provide any guiding principle in this regard.”

The commission further pointed out that the petitioner who seeks disqualification/de-notification of Chaudhry Nisar “has no locus standi” nor is he an “aggrieved person” within the contemplation of Article 199 of the Constitution.

Subsequently, the ECP was of the view that the “petition is liable to be dismissed.”

As per the ECP’s reply, the petition is not maintainable in its form nor is proceedable. It said that the prayer sought and relief claimed by the petitioner “does not fall within the ambit and mandate” of the law.

Earlier, the petitioner’s counsel argued that Nisar Ali Khan was elected as Member Punjab Assembly from PP-10 Chakri in 2018 general elections but he had not taken oath of his office as yet.

He contended that the act of not taking oath by an elected parliamentarian amounted to depriving the people of the constituency of their right to representation and a violation of Articles 2-A, 17 and 25 of the Constitution.

The counsel further contended that Rule 6 of the Rules of Procedure and Conduct of Business in the National and provincial assemblies to the extent of not providing time limit for taking oath was also ultra vires of the Constitution.

He prayed to the court to declare the impugned rules of the assemblies null and void for not carrying a time frame of oath taking and de-notify Nisar Ali Khan for not taking oath of his office and order a fresh election in the constituency.

Published in Dawn, March 28th, 2019