PESHAWAR: Issuing a stay order, the Peshawar High Court on Friday temporarily stopped Election Commission of Pakistan from taking any adverse action against Khyber Pakhtunkhwa Chief Minister Mahmood Khan over the alleged violation of by-polls code of conduct by using the government’s machinery for holding a public meeting of the ruling PTI in Charssada district.

A bench consisting of Justice Shakeel Ahmad and Justice Syed Arshad Ali also directed the ECP to submit a written reply within a fortnight to the chief minister’s petition seeking to declare that the commission’s code of conduct for by-elections in the province is not applicable to him.

It declared that until further orders, the commission won’t take any action against the petitioner over notices issued to him by the commission as well as the district monitoring officer (DMO) of Charssada.

The petitioner requested the court to declare illegal the Sept 19 ECP notice issued to him for ‘violating’ the poll code of conduct by using the government’s machinery, including a helicopter, for a public meeting of former prime minister Imran Khan in Charsadda on Sept 17.

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He said the Elections Act, 2017, and the rules made under it in respect of the code of conduct should be declared applicable to the certain class of people mentioned in Section 233 of the Act and not to him.

Mr Mahmood also sought the court ruling that the ECP or any of its functionaries can’t go beyond the mandate of sections 233 and 234 of the Elections Act in respect of application of the code to persons not mentioned in the Act, especially public office holders.

The petitioner’s counsel, Ali Gohar Durrani, contended that his client was excluded from the list of people mentioned in sections 233 and 234 of the Act, so he could not be proceeded against under those provisions.

He prayed the court to direct the ECP to withdraw the Sept 19 notice.

Mr Durrani argued that Section 233 of the Elections Act provided for the code of conduct for political parties and contesting candidates.

He said the section in question declared that the ECP should frame a code of conduct for political parties, election candidates, election and polling agents, security personnel, media, and election observers.

The lawyer said Section 234 of the Act provided for the monitoring of the election campaign and that the section was clearly made applicable to certain classes of the people, including candidates and political parties.

He argued that on Sept 17, a ‘misconceived’ notice was served on the petitioner by the district monitoring officer, Charsadda, regarding ‘implementation of code of conduct’ for the conduct of by-election in NA-24, Charsadda, and as a result, proceedings were initiated against the petitioner.

Mr Durrani contended that while proceedings before the Charsadda DMO were pending, a similar notice on the matter was served on the petitioner by the ECP Islamabad on Sept 19.

He argued that the law couldn’t be allowed to be interpreted by any forum other than the constitutionally recognised forums comprising the Supreme Court and high courts.

The counsel said the law didn’t allow the ECP to interpret the law and include the petitioner in the provision when the same was not included in it.

Advocate Mohsin Kamran appeared for the ECP and said it was the constitutional duty of his client to conduct free, fair and impartial elections and for that purpose, the election code of conduct was formulated.

He said the ECP had been trying to provide a level-playing field to all candidates.

Mr Kamran added that a clear violation of the code took place in the PTI’s Charssada public meeting by the use of the government’s machinery, including a helicopter, so a notice was issued to the petitioner.

Published in Dawn, October 8th, 2022