LAHORE: The Lahore High Court’s Justice Khalid Ishaq on Saturday dismissed petitions filed by former opposition leader in the Punjab Assembly Malik Ahmad Khan Bhachar and former MNA Muhammad Ahmad Chatha, who challenged the Election Commission of Pakistan’s (ECP) notifications that de-notified them.
The court observed that since the petitioners are fugitives from justice in every case, they cannot invoke this court’s jurisdiction for judicial review.
The subtle but decisive distinction of a “nexus to the case” is the key factor that conclusively determines the applicability—or otherwise—of the fugitive disentitlement doctrine in a civil matter brought by a criminal fugitive.
Applying this doctrine to the facts of these cases leads to the inescapable conclusion that the ECP’s notifications, challenged through these constitutional petitions, are inextricably linked to the petitioners’ convictions.
The respondents questioned the maintainability of these petitions, arguing that the petitioners are convicts who have not submitted themselves to due process, remain at large, and have active perpetual arrest warrants. Therefore, they asserted, the petitioners are not entitled to invoke this court’s extraordinary constitutional jurisdiction under Article 199 of the Constitution.
The Additional Attorney General for Pakistan argued this point of maintainability in reliance on various judgments. In brief, the Additional Attorney General contended that judicial review jurisdiction cannot be granted to the petitioners in these circumstances since equitable jurisdiction should not aid a fugitive from justice.
He further argued that a citizen seeking this court’s intervention must first show how he is entitled to a remedy when he is guilty of flouting a judicial order—specifically, fleeing after conviction.
Finally, he stated that the jurisdiction under Article 199 is extraordinary and equitable and should not be exercised by someone who has approached the court with “unclean hands,” being a fugitive from justice. The law officers representing the ECP largely adopted his arguments.
Responding to the question of maintainability, the petitioners’ counsel argued that despite a criminal conviction, civil rights remain protected. For example, challenging the ECP’s impugned notifications via Article 199 is unrelated to the criminal conviction, and the fugitive status should only affect the specific cases in which conviction occurred—not all matters.
It is worth mentioning that the petitioners had challenged their disqualification and sought to halt upcoming by-polls in their constituencies.
The petitioners’ counsel argued that no proceedings can be initiated against a member of the assembly without a reference from the Speaker. They noted that the lawmakers were disqualified without being heard, which violates the principles of natural justice.
The ECP disqualified the petitioners following their convictions in the May 9 cases by anti-terrorism courts. The trial court had sentenced each to 10 years’ imprisonment.
