Four years back: IK’s bid to get Gulalai disqualified for defection had fallen apart

Precisely four years back, a powerful attempt of Imran Khan as the chairman of the Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan had failed to get disqualified party lawmaker Aisha Gulalai on the charge of defection and abstention from voting.

As Imran Khan endeavours to deal with and ultimately prosecute over a dozen possible PTI defectors, the Supreme Court judgment in Gulalai’s case may be instructive to cite. It has frequently echoed during the current political saga.

He had exhausted all the legal options – the Election Commission of Pakistan, the Islamabad High Court (IHC) and finally the Supreme Court – to get her ousted from the National Assembly but none of them accepted his plea. Gulalai had survived as a legislator.

A three-member bench headed by the then chief justice, Saqib Nisar, and comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan had handed down the judgment in March 2018, dismissing Imran Khan’s appeal.

Gulalai had announced to quit the party in August 2017 after levelling allegations of harassment and corruption against the PTI chairman.

Justice Nisar had inquired from Imran Khan’s lawyer if Gulalai had submitted a written resignation to which he responded in the negative. The lawyer had argued that Gulalai had announced her decision to quit the party. He stated that she had violated the party’s constitution by not voting in the prime ministerial election.

Justice Nisar then inquired if the party chief himself had cast his vote in the same poll. The lawyer responded that Imran Khan had not been in the city when the election had taken place. “What if Gulalai says the same: she was not in the city when the election was held?” the chief justice had responded.

Later, Imran Khan had sent a notice to Gulalai stating she has defected from the party as per Article 63A.

The judgment said interestingly enough, Imran Khan, who is the party head [as defined by Article 63A] and at least three others neither attended the relevant session of the National Assembly on Aug 1, 2017 nor cast their votes in the same. No reason has either been assigned for such absence. Admittedly, no action was taken against any of the members, who neither attended the session nor voted in the same.

The verdict said that as such, there is no clear evidence available on record to establish that the PTI parliamentary party or the party whip had issued instructions to Gulalai; she had received the same; and she had disregarded such instructions, and had abstained from voting in favour of a candidate put up or supported by her parliamentary party which was contrary to the instructions received by her.

Further, at least four other PTI MPs were neither present nor exercised their votes. As such, the party head cannot be given an unbridled and unchecked authority to pick and choose from amongst members of his party who are similarly placed for the purpose of issuing declaration against them under Article 63A.

The judgment said the stance taken by Gulalai in her response to the show-cause notice issued by Imran Khan was not considered, which violated her legal and constitutional rights.

The bench wrote that it carefully perused the ECP judgment and found that it had recorded findings of fact after scrutiny and analysis of evidence and the record produced before it. There is neither misreading nor non-reading of evidence or any flaw or perversity or reasoning in the impugned order. Imran Khan’s lawyer has not been able to point out any error of law or fact calling for interference in the ECP judgment.

The verdict pointed out that Gulalai did not follow up with an intentional and voluntary act of resignation in the form of submitting her resignation in writing under her hand to the party head. It said the bench specifically asked Imran Khan’s lawyer if there is any document submitted by her and duly signed by her which may constitute a letter of resignation. He has candidly admitted that no such document is in existence or in possession of Imran Khan.

The judgment said it is also significant to note that the alleged speech/statement of Gulalai was not made on the floor of the National Assembly. On the contrary, during a speech made on Aug 7, 2017 on the floor of the House, she categorically stated that she neither had nor will resign from her party. The PTI constitution provides the manner in which a citizen may become its member. But it does not contain any provision which deals with resignation or removal from the party. Therefore, considering the totality of circumstances before the bench, it finds it difficult to hold that Gulalai had tendered her resignation, the verdict said

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