The Supreme Court of Pakistan on Tuesday dismissed a non-prosecution petition filed against PML-N senator-elect Muhammad Ishaq Dar, revoking its May 9, 2018 stay on the Election Commission of Pakistan issuing any notice in favor of the former finance minister (ECP).
The petition was dismissed by a three-judge SC bench led by Chief Justice Gulzar Ahmed after petitioner Muhammad Nawazish Ali Pirzada failed to attend for the second consecutive hearing.
The petitioner had challenged a previous Lahore High Court decision permitting Mr. Dar to run in the Senate elections on March 12, 2018. He also accused the former finance minister of being a fugitive from justice, claiming that an accountability court had labeled him an absconder in a corruption case after he failed to attend the trial against him on December 11, 2017.
The highest court had prohibited Mr Dar from taking the oath as a senator after it had suspended the issue of the notification, according to the lawyer. And, because the suspension was imposed by the court, it would mean that no party’s rights would be jeopardised, and the requirement of the Election (Third Amendment) Ordinance 2021 that lawmakers take the oath within two months of the legislature’s first meeting would be counted as of December 21, Salman Butt added.
Section 72 of the law was amended by adding proviso 72A, which states that if a returned candidate fails to take an oath within 60 days of the first sitting of the National Assembly, Senate, provincial assembly, or local government, or within 40 days of the promulgation of the current ordinance, his seat will become vacant.
When asked if his client would have to return to the nation to take the oath of office as a senator, the lawyer indicated Ishaq Dar was not feeling well but may come. Mr Butt proposed that the ECP might nominate any authority, such as the Pakistani high commissioner in the United Kingdom or any other equivalent position, to administer the oath, using Article 255(2) and Article 65 of the Constitution.
Article 255 implies that if an oath is required by the Constitution to be taken before a certain person, but it is difficult to do so for whatever reason, the oath may be taken before any other person named by the Constitution.
Article 65, on the other hand, deals with members’ oaths and specifies that a person elected to a House will not sit or vote until he has taken an oath in the manner set out in the Third Schedule before the House.
Salman Butt proposed that, as an alternative, a virtual oath be given, as is done in several nations such as New Zealand, Canada, and Australia, where the proceedings of their respective legislatures are conducted online.
Even in Pakistan, he continued, the Supreme Court and the Islamabad High Court had been holding hearings via video connection, which might be used for the administration of oath in the current case.
On the other hand, Additional Attorney General Chaudhry Aamir Rehman noted that because the stay against the ECP is no longer in effect, the recently adopted ordinance requiring a lawmaker to take the oath within 60 days will apply automatically.
“Now either the member needs to return to Pakistan to take oath or relinquish his seat,” he added, adding that the PML-N had also filed a challenge to the ordinance in the high court, claiming that Ishaq Dar could not travel to the country since the Supreme Court had blocked the ECP’s notification.
The IHC had dismissed the PML-appeal N’s against a presidential edict requiring members to take the oath of office within 60 days of the legislature’s first meeting.
The Supreme Court had previously tasked various government departments with finding a way to avoid extraditing Ishaq Dar for his subsequent production before it, with a directive to the secretaries of the Foreign Office and the Interior, as well as the prosecutor general of the National Accountability Bureau, to inform the apex court of ways to bring the former finance minister back.
If the former minister fails to appear before the supreme court, the court has threatened to proceed ex parte against him, with Ishaq Dar bearing the brunt of the penalties.
Soon after Tuesday’s hearing, Ishaq Dar’s lawyer, former Attorney General Salman Aslam Butt, told Dawn that because the Supreme Court’s stay had been overturned, today, December 21, would be the first day that his client would be regarded the notified person.