An unlawful ploy of disqualification

Part 1 of this series about the dis­qualification verdict announced by the Election Commission of Pakistan (ECP) in the Toshakhana ref­erence against the former prime minister Imran Khan conclud­ed that “not to speak of the ECP verdict (dated 21-10-2022) declaring Imran disqualified, even the reference itself is ille­gal, unlawful, incompetent and without lawful authority. For be­ing mala fide and devoid of force and made also in violation of the Articles 4 and 5 of the Constitution, the verdict should be declared null and void.”

Now, a petition has been filed in the La­hore High Court (LHC) challenging the relevant section of the Election Act, 2017 (the Act) under which the PTI chief was disqualified. LHC Justice Sajid Mehmood Sethi last Monday issued notices to au­thorities concerned, besides seeking legal assistance from Advocate General Punjab (AGP) Ahmed Awais on the writ petition. The ECP order, which interprets Section(s) 137, 167, 173, 174, 190, and 232 of the Act is arbitrary, illegal, and without juris­diction. It comes as a big blow to the par­ty which a few days before the verdict was announced had won big in by-polls across the country indicating public support for the ousted former premier.

The written ruling says the respondent (Imran Khan) had “intentionally and de­liberately” violated the provisions con­tained [in] sections 137, 167, and 173 of the Act as he “has made a false statement and incorrect declaration before the Commission in the statement of assets and liabilities filed by him for the year 2020-21”. Hence, he attracts disqualifi­cation under Article 63(1)(p) of the Con­stitution read with sections 137 and 173 of the Elections Act, 2017.”

On the other side, Article 63 (1) (p) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), states that an individual is, “for the time being, dis­qualified from being elected or chosen as a member of the Majlis-e-Shoora (Parlia­ment) or of a provincial assembly under any law for the time being in force”. The language of Article 63(1)(g) and 63(1)(h) of the Constitution prove it a hollow verdict as ECP is not a court of law. Left to the even more limited parameters of Article 63 of the Constitution, ECP’s de­cision can only be justified as part of the absurd sequence of events rather than any concrete reasoning of law.

Article 63(1) of the Constitution reads: “A person shall be disqualified from be­ing elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parlia­ment), if—(g) he has been convicted by a court of competent jurisdiction… or (h) he has been, on conviction for any offence in­volving moral turpitude, sentenced to im­prisonment for a term of not less than two years…” Article 62(1) of the Constitution reads: “A person shall not be qualified to be elected or chosen as a member of Ma­jlis- Shoora (Parliament) unless—(f)he is sagacious, righteous, non-profligate, hon­est and ameen, there being no declaration to the contrary by a court of law…”

Being neither a court nor tribunal, ECP has adopted incorrect interpretations and went beyond its mandate. Various judgments have been passed by the su­perior courts declaring that ECP is not a Court of Law. A judgement, titled, “P L D 2018 SC 189” says, “Undoubtedly, the ECP is not a Court or a Tribunal.” Anoth­er judgement, titled, 2021 SCMR 1675 reads: “there is no power or jurisdic­tion inherent in the Commission itself in terms of Article 218(3) to consider the qualification/disqualification of a candi­date/member, whether as an indepen­dent, standalone issue or as part of an election dispute.” Thus, there is no dec­laration by a court of law to the effect that Imran Khan has failed to meet the requirements of Article 62(1) of the Con­stitution. Being clearly in violation of the Constitution, Section 137(4) of the Act is ultra-vires the supreme law of the coun­try. Under Article 204 of the Constitu­tion, it is categorically provided as: “204. (1) In this Article, “Court” means the Su­preme Court or a High Court.” The provi­sion of Article 175(2) of the Constitution categorically states that no Court shall have any jurisdiction save as or may be conferred by the Constitution or by or under any law. The Act does not con­fer any jurisdiction onto ECP to act as a Court or Tribunal.

Similarly, the provision of Article 63(1)(p) of the Constitution does not apply to Imran Khan’s case as there is not even mention of “disqualification” in the sec­tions mentioned in the ECP order such as sections 137, 167, and 173 of the Act whilst Article 63(1)(p) of the Constitu­tion permits punishment mentioned in any law for the time being in force. Like­wise, not sharing details of Toshakhana gifts and proceeds from sales does not lead to disqualification. It can occur only when prosecution is commenced with­in 120 days of filing under Articles 63(2) and (3) of the Constitution. Article 63(2) of the Constitution reads: “If any ques­tion arises whether a member of Maj­lis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or… the Chairman shall…refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.” Whereas, Article 63(3) states: “The Election Commission shall decide the question within ninety days from its receipt…”

Also, Section 137(4) of the Act proves that the disqualification verdict is illegal, unlawful, and lacks any force. It reads: “Where a Member submits the state­ment of assets and liabilities under this section which is found to be false in ma­terial particulars, he may, within one hundred and twenty days from the date submission of the statement, be pro­ceeded against for committing the of­fence of corrupt practice.” Therefore, prosecution under Section 137 of the Act is only possible to be initiated within 120 days of the filing of false asset state­ments. However, in Imran Khan’s case, the last such statement was filed on 31.12.2021. Therefore, the prosecution could have been initiated by 30.04.2022 but the same could not be commenced within the stipulated period of 120 days.

As the matter has no elements of crim­inality to it, Imran cannot be penalised for criminal offences. So, Section 137 of the Act is ultra-vires the Constitution and is in direct violation of Articles 10-A, 4 & 5 of the Constitution as well as the Islamic Provisions. Section 137(1) of the Act reads: “Every Member of an Assem­bly and Senate shall submit to the Com­mission, on or before 31st December each year, a copy of his statement of as­sets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding thirtieth day of June on Form B.” Section 137(4) of the Act says “Where a Member submits the statement of assets and liabilities un­der this section which is found to be false in material particulars, he may, within one hundred and twenty days from the date submission of the statement, be proceeded against for committing the of­fence of corrupt practice.” Article 232 of the Constitution says: “Where a person has been convicted for any offence under this Act or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall…be disqualified for such period not exceeding five years...”

As per the constitutional provisions, ECP has two separate jurisdictions which cannot be used simultaneously. However, it has been doing this for a long and has also done this against Imran Khan. Arti­cle 232 of the Constitution is clear in its wording “Where a person has been con­victed for any offence under this Act or has been found guilty of any corrupt or il­legal practice by a Tribunal.” The word tri­bunal has been defined in the Act and the pre-election issues are raised before the tribunal, however, the matters which re­cur annually have nothing to do with the tribunal and the tribunal lacks jurisdic­tion to adjudicate upon them. Therefore, the so-called “disqualification” relates to the election and is not covered under Ar­ticle 232 of the Constitution.

The power and jurisdiction of the Elec­tion Tribunal have been defined in Chap­ter IX of the Act under the heading of “Election Disputes”. The procedure for the jurisdiction of the Election Tribunal has been stipulated in the said Chapter under Sections 139 to 166 of the Act. Section 167 of the Act defines Corrupt Practices and sub-section (f) of the same states that “contravenes the provisions of Section 132”. Nowhere in Section 137 of the Act has the above Section been mentioned. It shows the intentions of the legislature that the simple action of misstatement or misdeclaration cannot be termed as ‘cor­rupt practices’ which ultimately leads to disqualification. It is worth mentioning that former Prime Minister Yousuf Raza Gillani was disqualified by the Supreme Court of Pakistan, the court of competent jurisdiction, not the ECP.

As per the principles enlightened by the Constitution in its Article 218(3), the ECP makes such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly, and by the law, and that corrupt practices are guarded against. As it is administrative in nature and can only supervise and conduct the elections, the ECP has trans­gressed its jurisdiction in case of a dis­qualification order. The preamble of the Act is clear that it is related to the con­duct of elections and matters ancillary thereto. Therefore, the actions of ECP are in transgression of its defined and lim­ited jurisdiction. Bypassing the disqual­ification order by a five-member bench, headed by the Chief Election Commis­sioner Sikander Sultan Raja, in the ab­sence of a member from Punjab, the ECP has deliberately encroached upon the ju­risdiction of the High Court as well as the Supreme Court. As the order passed is vi­olative of the Constitution, it is void ab-initio and ultra vires the Constitution.

Muhammad Azhar Siddique
The writer is an Advocate of the Supreme Court of Pakistan and Chairman of
the Judicial Activism Panel