PESHAWAR: Upholding the disqualification of Abbottabad’s district nazim and several local council members by the Election Commission of Pakistan, a Peshawar High Court bench on Thursday declared the anti-defection clause of the Khyber Pakhtunkhwa Local Government Act 2013 in accordance with the Constitution.

The development comes as Justice Roohul Amin Khan Chamkani and Justice Lal Jan Khattak dismissed two identical petitions challenging Section 78A of the KP Local Government Act (KPLGA) dealing with the disqualification of a political party’s member on the ground of defection.

They also dismissed several election appeals originated out of the ECP judgments of disqualifying different elected local government representatives.

One petition was filed by Abbottabad district nazim Sardar Sher Bahadur Khan and 10 of his supporting councillors seeking the high court’s order to declare section 78-A of the law unconstitutional.

Declares LG law’s section on defection in line with Constitution

They were disqualified by the ECP last year on a reference filed by the Pakistan Tehreek-i-Insaf claiming they were their members and had violated the law by making a forward bloc and contesting the election for the district nazim against the candidate of their party.

Sardar Sher Bahadur was first elected district councillor in independent status in the May 2015 local government elections and had then joined PTI. However, he contested district nazim elections as independent candidate against PTI candidate Ali Khan Jadoon and was elected.

The second writ petition was filed by five district councillors of Lakki Marwat, Maulana Asghar Ali and others, who had also challenged Section 78-A of the KPLGA.

They were elected on ticket of Jamiat Ulema-i-Islam-Fazl. However, they voted for a joint candidate of PPP and PTI in the district nazim elections, whereas their party had boycotted the polls.

They were also disqualified by the ECP on a reference filed by the JUI.

Apart from two petitions, these petitioners had also filed election appeals challenging the respective judgments of the ECP. Those two election appeals were also dismissed by the bench.

The bench also dismissed three other election appeals filed by different elected representatives against their disqualification by the ECP on grounds of defection. The appellants included district councillor of Kohat Dr Syed Matiullah Shah, tehsil naib nazim in Swabi Shahab Ali and woman tehsil councillor in Swabi Noor Jehan.

Dr Matiullah was elected as independent member and had joined PML-N. Later, he resigned from that party.

Similarly, tehsil naib nazim Shahab Ali was elected tehsil councillor on the ticket of the JUI-F but supported the PTI candidate in the election of the Chota Lahor tehsil nazim.

In return, he was elected the tehsil naib nazim.

Similarly, woman councillor Noor Jehan was elected on the ticket of the PML-N. She however voted for the PTI candidate during the tehsil nazim election.

In the petitions, the petitioners’ counsel had contended that Section 78-A was not available in the KPLGA 2013 at the time of holding of the May 2015 local government elections and that the section was incorporated in the law prior to the holding of the elections of nazims and naib nazims of district and tehsil councils through the KPLG (Third amendment) Act, 2015, on Aug 24, 2015.

They said the section was in conflict with Article 19 of the Constitution, which guaranteed the freedom of association and freedom of expression.

The counsel said the section would impose a bar on free speech by members in their respective councils.

KP advocate general Abdul Lateef Yousafzai supported the impugned section saying it was a valid piece of legislation.

He said the declaration of defection by a member was totally an intra-party decision, which couldn’t be challenged on the threshold of Article 19 of the Constitution.

Meanwhile, the bench accepted an election appeal of Abbottabad woman councillor Urooj Khan against disqualification by the ECP on the ground that she had abstained from voting during the nazim election in violation of her party’s policy.

Her lawyer had contended that she was seriously sick and was hospitalised and therefore, she didn’t participate in the nazim’s election.

Published in Dawn, April 7th, 2017