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ISLAMABAD: The Pakistan Tehreek-i-Insaf (PTI) is likely to face a tough legal battle following the disqualification of its chairman and former prime minister Imran Khan.
The party has announced its intention to challenge the disqualification before the Islamabad High Court (IHC), but Mr Khan has to face another trial before a sessions judge, as the ECP has forwarded a complaint against him for submitting false declarations about concealing the gifts.
According to a member of the party’s legal wing, since there were fears of such an adverse verdict from the ECP, a pre-emptive petition in this regard had already been drafted by the legal team, led by Senator Syed Ali Zafar.
However, PTI has yet to cross the initial threshold of legal scrutiny of the petition.
Absence of signed final copy of ECP verdict may delay filing of appeal; SC decision in Vawda case may yet swing the scales
Since there is an alternate remedy available, and the appropriate forum for filing of the petition against the ECP’s final verdict is the Supreme Court, therefore, this might be the first objection levelled on the plea.
Another hurdle in securing an immediate hearing would be the absence of the ECP’s written order, which is yet to be signed by all five members of the bench, as one of them was away due to illness.
PTI legal eagles’ basic objection on the ECP’s verdict is that — in their opinion — it was issued in haste and the commission did not wait for the ailing member of the bench to return. This technicality seems to hamper Imran Khan from challenging the verdict in a timely manner, since a proper appeal can only be filed upon the receipt of an attested copy of the judgement, duly signed by all the members.
However, the party’s main objection is that the ECP hearing was a corum non judice, meaning a legal proceeding that is outside the purview of a particular forum.
Advocate Faisal Hussain, a senior member of PTI’s legal team, told Dawn that the party planned to file a petition before IHC and won’t challenge the verdict in the Supreme Court since the ECP was not the relevant forum to order Imran Khan’s disqualification.
“The verdict itself is weak and cannot sustain, since it is flawed,” he said, adding: “ECP violated its own laws… the question has arisen whether the verdict was issued with regard to NA-95 Mianwali or those constituencies where Mr Khan recently won in by-elections. What will be the fate of other seats? Can ECP, not being a court of law, override the verdicts of superior courts,” he asked.
The advocate said that the party would seek the high court’s ruling on all these issues.
The ECP has also sent a case against Mr Khan to the sessions judge for a summary trial over submission of a false statement and incorrect declaration. But Mr Hussain was of the view that ECP should have waited for the outcome of these proceedings before disqualifying Mr Khan.
As far as the ECP’s power to disqualify a lawmaker is concerned, the IHC has already upheld a verdict of the commission on the de-seating of Faisal Vawda, whose case is currently pending before the Supreme Court, while the ECP verdict remains intact.
Before the court, the emphasis of Vawda’s counsel was on the ECP’s jurisdiction to give a declaration in the context of articles 62 or 63 of the Constitution.
In response to this argument, the IHC held that the ECP’s verdict was justified.
The court’s order stated: “Commission has merely given effect to the declarations explicitly made by the august Supreme Court in the case of Habib Akram. The declaration to the extent of consequences as if the false affidavit was submitted before the august Supreme Court, can only be considered and acted upon by the apex court. The impugned order [of the ECP] has merely given effect to the consequences under the Constitution and law in the light of the declarations made by the august Supreme Court in the case of Habib Akram.”
But Advocate Hussain said that Vawda’s case is different from Mr Khan’s; ECP de-seated Vawda under Article 62(1)(f) and this constitutional provision relates to the qualifications of a lawmaker.
However, Mr Khan has been disqualified under Article 63(1)(p), which deals with the basis of disqualification of a parliamentarian.
The difference between the two is that Article 62, the ECP can disqualify someone for submitting a false declaration in their nomination papers, whereas, under Article 63, Mr Khan can be ousted for submitting a declaration after being elected a member of parliament.
A recent ruling by a two-member bench of the Supreme Court, reviewing the disqualification of Mohammad Salman Naeem, held that “Parliament did not confer any jurisdiction… on the commission [ECP] to consider the qualification or disqualification, under Article 62, 63 of the Constitution, of a candidate for election or a member of the legislature.”
According to Supreme Court advocate Kashif Ali Malik, this may be a case of first impressions for the superior judiciary to decide, as to whether the ECP was competent to issue a declaration disqualifying a sitting member of the parliament by exercising powers under Article 63(1)(p) of the Constitution.
However, he said that ECP was competent to send a complaint to a sessions judge under Section 190(2) of the Elections Act for trial over alleged corrupt practices.
He said that Mr Khan had to face a trial for allegedly concealing the details of Toshakhana gifts in the declaration he was required to submit before the ECP every year.
Regarding the applicability of the Supreme Court judgement in the Salman Naeem case on Mr Khan’s disqualification, Mr Malik said that it may be linked with the fate of appeal of Vawda which is still pending before a three-judge bench of the Supreme Court.
Published in Dawn, October 22th, 2022
