ISLAMABAD: The Supreme Court on Tuesday dismissed a plea moved against PML-N senator-elect Muhammad Ishaq Dar for non-prosecution, thus vacating its May 9, 2018 stay against the issuance of any notification in favour of the former finance minister by the Election Commission of Pakistan (ECP).

A three-judge SC bench, headed by Chief Justice Gulzar Ahmed, rejected the petition as petitioner Muhammad Nawazish Ali Pirzada did not appear to plead his case for the second consecutive hearing.

The petitioner had challenged an earlier verdict of the Lahore High Court allowing Mr Dar to contest the March 12, 2018 Senate elections. He also accused the former finance minister of being an absconder from judiciary on the grounds that an accountability court had on Dec 11, 2017 declared the latter an absconder in a corruption reference after he failed to join the trial against him.

Soon after Tuesday’s hearing, former attorney general Salman Aslam Butt, who was representing Ishaq Dar, explained to Dawn that since the stay granted by the Supreme Court had been vacated now, it would mean that today, December 21, was the first day to be considered his client as the notified person.

Order vacates stay against former finance minister’s Senate election notification

Substantiating further, the counsel said it was the apex court which had prevented Mr Dar from taking the oath as a senator after it suspended the issuance of the notification. And since the suspension was an act of the court, it would mean that none of the rights of any party would be prejudiced and, therefore, the requirement of the Election (Third Amendment) Ordinance 2021 to take the oath by the lawmaker within two months after the first sitting of a legislature would be counted from December 21, Salman Butt added.

Under the ordinance, Section 72 of the law was amended by adding proviso 72A that states that the seat of a returned candidate will become vacant if he wilfully does not make an oath within 60 days from the date of the first sitting of the National Assembly, Senate, provincial assembly or local government or within 40 days of the promulgation of the present ordinance.

Asked whether his client would now have to return to the country to be administered the oath as a senator, the counsel said Ishaq Dar was not well but could come. Citing Article 255(2), read with Article 65 of the Constitution, Mr Butt suggested that the ECP could nominate any authority like the Pakistani high commissioner in the United Kingdom or any other similar office for the administration of oath.

Article 255 suggests that where under the Constitution, an oath is required to be made before a specified person but for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated.

Likewise, Article 65 deals with the oath of members and states that a person elected to a House will not sit or vote until he has made before the House oath in the form set out in the Third Schedule.

Salman Butt suggested that as an alternative a virtual oath could be administered as has been the practice in many countries like New Zealand, Canada and Australia, where the proceedings of respective parliaments were conducted virtually.

Even in Pakistan, he explained, the Supreme Court as well as the Islamabad High Court had been conducting hearings through video link, which could also be adopted in the present case for the administration of oath.

On the other hand, Additional Attorney General Chaudhry Aamir Rehman explained that since the stay against the issuance of a notification by the ECP was no more in the field, the recently promulgated ordinance, which required a lawmaker to take the oath within 60 days, would automatically apply.

“Now either the member has to return to Pakistan to take oath or leave his seat,” he said, adding that the PML-N had also taken a plea before the high court on a challenge to the ordinance that Ishaq Dar could not return to the country since his notification by the ECP had been suspended by the Supreme Court.

The IHC had rejected the PML-N’s plea against the presidential ordinance that requires the lawmakers to take the oath within 60 days after the first sitting of a legislature.

Earlier, the Supreme Court had tasked different government departments with finding a way out of extraditing Ishaq Dar for his subsequent production before it with a directive for secretaries of the Foreign Office and interior as well as prosecutor general of the National Accountability Bureau to apprise the apex court of the ways on how to bring back the former finance minister.

The apex court had also warned of proceeding ex parte against the former minister if he failed to make appearance before it, adding that the consequences of which would have to be faced by Ishaq Dar.

Published in Dawn, December 22nd, 2021