Last Friday’s disqualification verdict announced by the Election Commission of Pakistan (ECP) in the Toshakhana reference is against the settled principles of law, being a pathetic manoeuvre to politically defeat PTI Chief Imran Khan. Though the ECP verdict is against legal and constitutional provisions, it was not unexpected because the electoral watchdog has long seemed to be part of the coalition government. The five-member bench, headed by Chief Election Commissioner (CEC) Sikander Sultan Raja, lacked jurisdiction to even decide any questions of corrupt practices and disqualification against Imran Khan under the Elections Act 2017 and the constitutional provisions.
The disqualification order reads, “…the respondent (Imran Khan) has become disqualified under Article 63(1)(p) of the Constitution read with Section 137, 167 and 173 of the Elections Act 2017, consequently he ceases to be a member of the National Assembly of Pakistan and his seat has become vacant accordingly.” The order further states, “As the respondent has made false statements and incorrect declaration, therefore, he has also committed the offence of corrupt practices defined under sections 167 and 173 of the Elections Act 2017.” Finally, the ECP order reads, the “Office is directed to initiate legal proceedings and to take follow-up action under Section 190(2) of Elections Act 2017.”
Under the law, Imran Khan is a member of the National Assembly after winning six out of eight seats in the recently held by-polls of the NA, and can take the oath of his office at any time whilst the ECP has no authority to restrain him from doing so. Article 63(1)(p) of the 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”. However, this provision 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 137, 167, and 173 whilst Article 63(1)(p) permits punishment mentioned in any law for the time being in force. For instance, an accountability court handed the then-ousted prime minister seven years in jail and fined him Rs1.5 billion in the Al-Azizia Steel Mills corruption reference, besides the disqualification of 10 years from holding any public office. Likewise, the accountability court announced the verdict in the Avenfield properties corruption reference, handing Nawaz 10 years as jail time for owning assets beyond known income besides disqualification for 10 years to contest election or to hold public office under Section 15 of NAB Ordinance 1999. The punishment of disqualification is mentioned in section 15 of NAB Ordinance 1999. Section 15 of NAB Ordinance reads, “Where an accused person is convicted 3[of an offence under section 9 of this Ordinance], he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years…”
However, the disqualification order reads that Imran Khan has been disqualified under Sections 137, 167, and 173 of the Elections Act, however, in these sections, there is no mention of the word “disqualification”. Furthermore, various sources are stating that the disqualification is for a period of 5 years which is indeed untrue and has no nexus with reality. In actuality, Imran Khan has not even been disqualified owing to the explanation as has been provided through this. 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). Article 63(2) reads: “If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, 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 or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”
Also, Section 137(4) of the Election Act 2017 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.” Thus, prosecution Under Section 137 of the Election Act 2017 is possible 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. The prosecution could have been initiated by 30.04.2022 but the same could not be commenced within the stipulated period of 120 days.
The verdict stipulates that the respondent (Imran Khan) had “intentionally and deliberately” violated the provisions contained [in] sections 137, 167, and 173 of the Elections Act, 2017, as he “has made a false statement (sic) and incorrect declaration before the Commission in the statement of assets and liabilities filed by him for the year 2020-21”. Therefore, it adds, Imran Khan has also committed the “offence of corrupt practices” defined under sections 167 and 173 of the Elections Act, 2017, punishable under Section 174 of the Elections Act, 2017.
Section 167(a) reads: “A person is guilty of the offence of corrupt practice if he (a) is guilty of bribery, personation, exercising undue influence, capturing of the polling station or polling booth, tampering with papers, and making or publishing a false statement or declaration.” Section 173 reads, “A person is guilty of making or publishing a false statement or declaration if he makes or publishes a false statement or submits a false or incorrect declaration in any material particular…”
Section 174 reads, “Any person guilty of the offence of corrupt practice shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one hundred thousand rupees or with both.” The verdict states that Imran Khan attracts disqualification under Article 63(1)(p) of the Constitution read with sections 137 and 173 of the Elections Act, 2017. The ECP illegally and unlawfully “disqualified” Imran Khan under Section 174 which specifies only a three-year punishment or fine or both, and not a disqualification. So, a reference against the ECP members, who passed the disqualification order unlawfully and illegally without jurisdiction, should be submitted to the Supreme Judicial Council (SJC) for legal action. Unlike Nawaz, who was disqualified under Section 15 of the NAB Ordinance, Imran Khan has been disqualified under Section 174 of the Elections Act illegally and unlawfully as there is no punishment for disqualification under this law.
If the disqualification has been awarded for submission of a false statement of assets and liabilities under Section 137(4) which is punishable under Section 174 of the Elections Act, then punishment under Section 174 is awarded after trial for awarding disqualification under Article 62(1)(h) of the Constitution. Article 63 stipulates that disqualifications may be made based on a person having been: (ii) ‘[convicted] for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years unless a period of five years has elapsed since his release’ (Article 62(1)(h)). If a person is awarded punishment under Section 137 of the Elections Act, it does not mean that person shall be disqualified too under Section 174 because it does not stipulate disqualification. Above all, the reference was illegal and unlawful from its beginning because there was no express violation of Article 63 of the Constitution. Moreover, punishments Under Article 62(1)(f) are made by courts—the Supreme Court or High Courts—not the Election Commission. There is no instance of such disqualification as has been awarded to Imran Khan in the legal and constitutional history of the country. Article 62(1)(f) states: “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless […] he is sagacious, righteous and non-profligate, honest and Ameen, there being no declaration to the contrary by a court of law.”
The Toshakhana, set up in 1974, is a department under the administrative control of the Cabinet Division. It stores precious gifts given to rulers and government officials by their counterparts of other governments or foreign dignitaries. As per Toshakhana rules, gifts received in this manner are reported to the Cabinet Division. But in good faith and with bona fide intention, PTI during its tenure did not disclose the details of the gifts given to Imran Khan since he became prime minister in 2018. It had been intended that disclosure of the details of such gifts would jeopardise international relationships. The disqualification verdict is political and is in the negation of the law as the ruling alliance has remained failed on various political fronts to defeat the cricketer-turned-politician’s party. A few days ago, PTI won big in by-elections across the country. Earlier, it bagged a resounding victory in the July by-polls in Punjab province. The by-election results indicate that the former prime minister’s party enjoys public support.
In an electoral fight between the ruling PDM and PTI, Imran Khan’s party turned out as the winner by defeating the ruling multi-party coalition including the PML-N and PPP which had fielded their joint candidates in all these constituencies. Being the sole candidate of his party on seven of the eight National Assembly (NA) seats, Imran Khan secured six out of eight NA seats in the by-election. Meanwhile, PTI also took two out of three Punjab Assembly seats. Amidst low turnout, PTI also won the by-election of Karachi’s NA-245 and retained its mandate from the constituency giving a setback to the Muttahida Qaumi Movement Pakistan (MQM-P). Meanwhile, the disqualification verdict caused countrywide protests by PTI supporters and workers.
On the heels of the disqualification of Imran Khan and the declaration of his National Assembly seat vacant, came directly to the party workers and the leadership to hold peaceful protests across the country. The party supporters took to the streets and reacted to the disqualification by blocking the main roads across the country to express their sympathy with their leader. Not to speak of the ECP verdict declaring Imran Khan disqualified, even the reference itself is illegal, unlawful, incompetent, and without lawful authority. For being in mala fide and devoid of force, and made also in violation of Articles 4 and 5 of the Constitution, the verdict should be declared null and void. Last but not least, given the above illegalities, unconstitutionality, bias, and malafide, the Superior Courts have the jurisdiction to direct the Supreme Judicial Council to take up the matter for removal of the Chief Election Commissioner/Member Election Commission given Article 209 of the Islamic Republic of Pakistan, 1973.