National Assembly Speaker Ayaz Sadiq sent on Thursday a reference for the disqualification of Ayesha Gulalai, the estranged MNA of the Pakistan Tehreek-i-Insaf, to the Election Commission of Pakistan (ECP) with a request to decide the matter within a month as per rules.
The ECP immediately summoned Ms Gulalai to appear before it on Sept 7 to explain her position, failing which the matter would be decided in absentia.
Two days ago, PTI chairman Imran Khan had declared Ms Gulalai a defector and written to the NA speaker and the chief election commissioner (CEC), seeking commencement of the process for her disqualification.
Ms Gulalai has been accused of abstaining from voting for the PTI’s designated candidate in the recent elections for the office of prime minister which the party believed constituted a valid and actionable ground under Articles 63A(1)(a) and 63A(1)(b)(i) for declaring her a defector.
Article 63A of the Constitution deals with the circumstances under which a lawmaker can be disqualified on grounds of defection.
Inserted by the 18th Amendment, the first two sub-clauses of the article state that the lawmakers can be disqualified if they either resign from membership of their party or join another party, or “vote or abstain from voting in the house contrary to any direction issued by the parliamentary party to which they belong” with regard to the election of the prime minister.
Such a lawmaker “may be declared in writing by the head of the parliamentary party to have defected from the political party, and the head of the parliamentary party may forward a copy of the declaration to the presiding officer, and shall similarly forward a copy thereof to the member concerned”.
The PTI letter also mentioned a show-cause notice issued to Ms Gulalai on Aug 10, arguing that since she did not respond to it, she had “acquiesced to the issuance of the declaration against [her]”.
The letter requests the NA speaker to act on the declaration, dated Aug 28, in line with the Constitution, reminding him that if the speaker’s office does not refer the matter to the CEC within two days, it shall be “deemed referred to the CEC, who shall lay the same before the ECP for confirmation”.
Under the Constitution, the ECP will have 30 days from the receipt of the declaration to take action on the basis of the party head’s declaration.
But the matter against Ms Gulalai may not be as open-and-shut case as the PTI thinks, and a minor technicality may prevent her from being disqualified for not voting in the PM’s election.
Legal experts attach great significance to the use of the word “abstain”, and say that there is a fine distinction between “being absent” and “abstaining”; while the former refers to the act of not showing up to vote, the latter implies that a member present in the house did not vote in accordance with its party directions.
Incidentally, Ms Gulalai was not the only PTI member absent from NA proceedings on the day of the PM’s election — both Imran Khan and Jahangir Tareen, the chairman and secretary general of the PTI — were absent from the lower house on Aug 1 and did not vote for Sheikh Rashid Ahmed, the party’s designated candidate in the contest for the post of prime minister.
Experts say if Ms Gulalai has some valid justification for not attending the assembly’s session the day prime minister was elected, it cannot be termed as abstention. “Suppose if a member falls ill or meets an accident, can he or she be declared a defector just on account of absence,” a legal expert on electoral laws said while talking to Dawn. He said the term abstention appears to be a situation where one is present in the house but deliberately avoids voting, or publicly announces to stay away from the voting process.
Ayesha Gulalai was not available for comment despite repeated attempts. But informed sources said she rushed to the ECP immediately after TV channels reported she had been summoned by the ECP.