A division bench of the Sindh High Court (SHC) on Saturday suspended the Sindh Assembly’s notification to unseat former Sindh chief minister Arbab Ghulam Rahim from PS-60 until April 19. The bench comprising Justices Muneeb Akhtar and Hasan Azhar Rizvi also suspended the schedule issued on April 13 by the provincial election commissioner for by-election on Rahim’s seat (PS-60) Tharparkar-I. The order came up on the miscellaneous applications filed by Rasheed A Rizvi, the counsel of the petitioner Rahim.
The bench in its order observed that the petitioner was elected to the Sindh Assembly and was challenging the notification that was issued by the provincial assembly on March 22 declaring the seat, to which the plaintiff was elected, as vacant pursuant to the Sub-rule (1) of the Rule 56 of the Rules of Procedure of the provincial assembly read with the Clause (2) of the Article 64 read with the Article 127 of the Constitution of Pakistan.
The counsel for the petitioner stated that consequent upon the aforesaid seat having been declared vacant, the respondent No 2 (the election commission) has, through its press release dated April 13, issued the schedule for the by-election to be held for the seat to which the petitioner was elected. In terms of the aforesaid provisions of the constitution read with the Rules of Procedure of the Sindh Assembly, it is provided that the provincial assembly may declare the seat of a member vacant if, without leave of the assembly, the member remains absent for 40 consecutive days of its sittings.
In the Para 17 of the petition, the case put forward by the petitioner is that in fact only 38 days had passed before the notification declaring his seat to be vacant was issued and that, therefore, the constitutional mandate in this regard has not been observed. In other words, the Article 64 (2) was not applicable since the minimum number of days that must elapse (that is 40 days, which must be consecutive) had not passed.
The counsel for the petitioner further stated that prior to the sessions identified in the Para 17, applications for leave of absence on behalf of the petitioner were filed in accordance with law in respect of each session and without fail leave of the absence was duly granted by the house. However, in relation to and starting from the session noted in the Para 17, although applications for granting leave of absence were filed in respect of each of the sessions therein identified, the applications were deferred and it was only after the last session mentioned in the said para 17 that the matter of Rahim’s leave of absence was taken up and the declaration made that his seat stood vacated.
The counsel submitted that the leave applications filed on behalf of the petitioner have been taken up in each of the sessions noted above as is the mandate of the Rule 55, and if the leave is refused, the petitioner would take appropriate remedial steps including attending the subsequent sessions of the assembly. He submitted that the entire exercise against the petitioner is tainted by malice in law and that, therefore, for all of the aforesaid reasons, the relevant notification merits being suspended.
The verdict said, “We have seen the relevant provisions of the constitution as also the relevant rules of the Rules of Procedure of the Sindh Assembly.
“Clause (1) of the Article 69 read with the Article 127 provides that the validity of any proceedings in the assembly shall not be called in question on the ground of any irregularity of procedure and prima facie on one view of the matter, the fact that the assembly in the present case did not take up the leave applications of the petitioner in each of the sessions identified in the para 17 of the petition is merely a matter of procedure and, hence, beyond the jurisdiction of the courts.
“However, at the same time, notice must be taken of the provisions of the Clause (2) of the Article 64 and the cumulative effect of the assembly not taking up the leave applications in the successive sessions, resulting in the petitioner’s seat being declared vacant, must also be taken into consideration.
“In our view, appear prima facie the present petition raises substantial questions regarding the proper interpretation and interaction of, inter alia, the Clause (1) of the Article 69 on the one hand and the Clause (2) of the Article 64 on the other, and the matter of the proper interpretation and interaction of the constitutional provisions is a matter that is well within the jurisdiction of this court.”
