نشست:26 مارچ 2024ء

Session No.

5

Summoned by

Governor of the Punjab

Sitting No

5

Date and Time

Tuesday, March 26, 2024

Scheduled Time

10:00 am

Commenced at

12:28 am

Adjourned at

03:10 pm

Total working hours

2 Hours 42 Minutes

Presided by

1)      Malik Muhammad Ahmad Khan, Speaker

2)      Malik Zaheer Iqbal, Deputy Speaker

Attendance

247

The sitting commenced with recitation from the Holy Qur’an and its Urdu translation followed by Naat-e-Rasool-e-Maqbool ﷺ

The Speaker announced the following ruling on the point of order raised by Rana Aftab Ahmad Khan, MPA (PP-108) on March 15, 2024:

RULING OF THE CHAIR IN RESPECT OF POINT OF ORDER RAISED REGARDING AB INTIO DENOTIFICATION OF A MEMBER BY ELECTION COMMISSION OF PAKISTAN AFTER RECOUNT AND ADMINISTERING OF OATH TO THE MEMBER DECLARED RETURNED IN HIS PLACE

BACKGROUND:

This ruling shall dispose of the point of order raised by hon’ble member Mr Aftab Ahmed Khan, MPA (PP-108) during the sitting held on March 15, 2024.

Brief background of this ruling is that on March 13, 2024, the Election Commission of Pakistan (ECP) issued a Notification withdrawing ab initio its earlier Notification, dated February 17, 2024, to the extent of Mr Umair Wasi Chaudhary (PP-100), and declaring Mr Khan Bahadar as the returned candidate from PP-100 as a result of recount by the concerned Returning Officer.

On March 15, 2024, when Mr Khan Bahadar, returned candidate from PP-100 attended the sitting of the Assembly to make oath, Mr Aftab Ahmed Khan raised a point of order that the Speaker must not administer oath to the above-mentioned member-elect until the expiry of the period of limitation for appeal as mentioned in Rule 38 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997 (“the Rules”).

However, having reserved my detailed ruling in this regard and referring to Rule 6(4) of the Rules, I administered oath to the member-elect pursuant to the said Notification of ECP.

Now, therefore, in exercise of powers vested in me under Rule 209 of the Rules, I, Malik Muhammad Ahmad Khan, the Speaker, announce the following detailed ruling on the issue as under:

RULING:

“Pursuant to a Notification (“2^nd Notification”) issued by the Election Commission of Pakistan (ECP), dated March 13, 2024, the member-elect from PP-100, Mr Khan Bahadar attended the sitting of the Assembly held on March 15, 2024 for making oath. He had been declared returned as a result of recounting of votes against Mr Umair Wasi Chaudhary, the previously notified member from PP-100. When I called upon Mr Khan Bahadar to make oath as a member, Hon’ble Mr Aftab Ahmad Khan, PP-108, raised a point of order that the Speaker could not administer oath to the member-elect referring to Rule 38 of the Rules of Procedure of Provincial Assembly, 1997 of the Punjab (“the Rules”). Rule 38 is reproduced below for convenience:

“38. Unseating, disqualification and death of a member.– (1) If a member is unseated as a result of an election dispute or becomes disqualified from being a member, the Chief Election Commissioner shall immediately intimate the fact to the Speaker stating the date on which he has been unseated, or as the case may be, disqualified from being a member and on receipt of such intimation, the Speaker shall, as soon as may be, after the expiry of the period of limitation for appeal, inform the Assembly that such member has been unseated or disqualified by the Chief Election Commissioner.”

Hon’ble Mr Aftab Ahmed Khan, MPA (PP-108) also raised the point that if the Speaker had administered oath to him, what would be the fate of the un-seated member from PP-100 if a court of law decides in his favor subsequently.

I have given detailed consideration to the issue, and surrounding the facts and circumstances, in the light of the precedents, relevant provisions of the Constitution, the Rules, and also the rules of other Assemblies as well as the prevalent practice in various legislatures. I have reached the conclusion that having received a duly issued Notification by the competent authority, i.e. the Election Commission of Pakistan (“ECP”), I was under obligation to administer oath to the member-elect under Rule 6(4) of the Rules.

Hon’ble Aftab Ahmad Khan, MPA, did not produce or quote any document, or restraining order in respect of the Notification of ECP dated March 13, 2024, hence, on receipt of the said Notification, I was bound to administer oath to the above-mentioned member-elect from PP-100 in terms of Rule 6(4) of the Rules, as is required under the law, Rules, parliamentary practices and convention. The Rule 6(4) imposes an unambiguous duty upon the Presiding Officer:

“A person elected to the Assembly, who has not already made the oath…………, may do so before the Assembly at any time, subject to the prior intimation to the Speaker or to the Secretary”.

Secondly, the Rule 6 does not prohibit or places any specific bar or restriction upon the Presiding Officer. In fact, the tenor of the rules is that the Presiding Officer does not have much discretion vis-à-vis administering of the oath of membership after the duly issuance of notification by the ECP. If the issue of administering the oath arises the Presiding Officer is bound by the self-contained provisions of the Rules, which in this case is Rule 6. There is no other relevant provision in the Rules or law that specifically restricts oath of member. The general rule of interpretation is that general provision give way or yield to specific provision of law. In the instant case, the specific provision is Rule 6, not Rule 38.

Moreover, the high constitutional importance of oath of a member is evident from the fact that it is specifically mentioned and provided in the Constitution of Pakistan [Article 65 read with article 127, and Third Schedule of the Constitution].

However, Hon’ble Aftab Ahmad Khan instead of considering the relevant provision of the Rules, relied only upon Rule 38. His contention was that Rule 38 places a bar upon the Speaker from administering the oath. I am of the considered view that the instant matter does not come under the purview of Rule 38 as discussed above.

Additionally, Rule 38 concerns “the unseating of a member as a result of an election dispute”, whereas, in my opinion, the issue under consideration is not an election dispute rather an administrative affair envisaged in Section 125 of the Elections Act 2017 “Appeal against count” which provides that the representation of recounting is filed with the Secretary, ECP and the Commission may either dismiss the appeal or determine the result afresh after recount and make such consequential order as may be necessary. It is pertinent to mention that as per subsection (6) of Section 125, the decision of the Commission is final.

Thirdly, and alternatively, the Rule 38 appears to be applicable to unseating of a member, however, in the instant case, the ECP’s notification unambiguously declares that Mr Umair Wasi Ch had never been a member of the Assembly to begin with. His notification was withdrawn and declared void ab initio.

As far as the point raised by hon’ble Aftab Ahmed Khan about the fate of un-seated Member, if he gets any relief subsequently from a court of law, I rule that in such eventuality, I would again administer oath to him if Election Commission of Pakistan issues Notification to this effect.

It would be pertinent to quote a precedent from the previous Assembly (2018-2023) when a similar eventuality occurred. Pursuant to the recounting held on PP-123 in compliance with the order of SCP, ECP recalled its Notification of August 10, 2018 vide its subsequent Notification dated February 12, 2019, to the extent of Syed Qutub Ali Shah and Ms Sonia was declared elected from PP-123 in his place. She made oath on the first available next sitting of the Assembly, i.e. on February 20, 2019 without any objection raised on the pretext of Rule 38 regarding taking into account the expiry of the period of limitation for appeal.

Therefore, I acted accordingly and administered oath to the member-elect under Rule 6. With this reasoning, I rule out the points of order raised by hon’ble Aftab Ahmed Khan, MPA (PP-108).

General discussion on Annual Budget for the year 2023-24 continued for the fourth day. The following Members participated:

Ms. Hina Parvez Butt, Mr. Shahbaz Ahmad, Mr. Sami Ullah Khan, Syed Riffat Mehmood, Ms. Saima Kanwal, Sardar Mohammad Ali Khan, Mr. Muhammad Yousaf, Mr. Hassan Malik, Mr. Sher Ali Khan, Ms. Zarnab Sher, Mr. Muhammad Ajmal Khan, Mr. Zulfiqar Ali Shah, Mr. Faisal Jamil, Ms. Sarah Ahmad and Rana Aourang Zaib

The House was then adjourned to meet on Wednesday, March 27, 2024 at 10:00 am