ISLAMABAD: The Islam­abad High Court (IHC) has restrained the Election Commission of Pakistan (ECP) from starting disqualification proceedings against Prime Minister Imran Khan for repeatedly violating the code of conduct in Khyber Pakhtunkhwa’s local bodies elections.

The decision was announced by IHC Justice Amir Farooq on Monday while hearing a petition jointly filed by the prime minister and Planning Minister Asad Umar.

The petition challenged the legality of the poll code issued by the ECP, under which the commission prohibited all parliamentarians holding public office from campaigning in the local bodies elections.

Earlier this month, the ECP issued notices to Prime Minister Khan, KP Governor Shah Farman, Chief Minister Mahmood Khan, federal ministers Shah Mahmood Qureshi, Asad Umar and Murad Saeed, and others for violating the election code.

The premier and Mr Umar later petitioned the high court against the ECP notices.

During the hearing, Attorney General for Pakistan (AGP) Khalid Jawed Khan argued that superior courts had already deliberated upon the issue of political parties headed by state functionaries and had barred the president and governors from holding the party position.

The AGP, however, said the prime minister and the ministers held the executive positions and they were also active members of a political party.

He pointed out that the ECP had issued notices to PM Khan almost on a daily basis despite the fact that the premier was not a candidate in the local body elections.

Referring to the recently promulgated Presidential Ordinance on Elections Act, the AGP said the law had now allowed public office holders to canvass in the election.

Justice Farooq inquired from the ECP’s counsel for reaching the conclusion that the presidential ordinance was not applicable in this scenario and how the commission amended the code of conduct.

The ECP’s counsel said the commission had devised a code of conduct for free and fair elections. He said the prime minister and other ministers were using state machinery for political campaigns.

The AGP argued that the premier was paying the expense of election campaigns from his own pocket.

The premier was entitled to a necessary security protocol during travelling, he said, adding that public office holders could ask for reimbursement for using official resources during the campaigns.

The attorney general argued that the election commission could disqualify the premier and ministers during a hearing on notices issued for poll code violations.

The court, however, maintained a status quo in this matter.

In the petition, Barrister Syed Ali Zafar raised the issue that under the Constitution, the ECP had to abide by the law of the land.

He submitted that under Article 187-A of the Election Act 2017, all parliamentarians, including those who hold public offices, were entitled to address gatherings during the elections if they comply with the safeguards provided in the law, such as not to use public funds or declare any development projects, etc.

The public office holders, according to Mr Zafar, were entitled to address people in gatherings, as it was part of their job.

Barrister Zafar pointed out that under the election act, the ECP was entitled to make a code of conduct in consultation with political parties, but it was not entitled to amend, change, add or delete any provision.

Only the parliament could change the provisions of the election act, or a court of law could declare a provision as being contrary to the Constitution, he said.

The petition stated that the ECP was neither the parliament nor a court of law and therefore could not declare a provision of the Election Act 2017 to be contrary to the Constitution or to make it redundant.

Barrister Zafar pointed out that in the case at hand, the ECP had acted as a legislature and a court by declaring Section 187-A of the election act as unconstitutional under the garb of amending para 16 in the code of conduct.

After hearing both parties, the court ordered that the ECP should file a reply to the petition and directed that no adverse action should be taken against the prime minister or Asad Umar in the meantime regarding the code of conduct.

Published in Dawn, March 29th, 2022