ECP has no power to disqualify Imran Khan in Toshakhana case: legal experts

ISLAMABAD: Legal experts said that the Election Commission of Pakistan (ECP) has no power to disqualify PTI chief Imran Khan in the Tohshakhana disqualification reference.

It is pertinent to mention here that the ECP announced to give its reserved verdict in the Toshakhana disqualification reference against former prime minister Imran Khan on Friday (today) at 2 pm.

The commission issued notice to all relevant parties or their counsels to appear before the electoral watchdog at its secretariat in Islamabad. The commission sought foolproof security arrangements ahead of the verdict.

Legal experts pointed out the difference and strongly doubt whether the dense legal prose and key legal fundamental requirements, as well as rulings of the apex court, empower the ECP to hand down disqualification to the former prime minister under Article 62 (1)(f) of the Constitution.

Senior lawyers believe that the ECP does not even come under the purview of a ‘court of law’, which could declare a verdict under Article 62(1)(f) of the Constitution, according to Express Tribune.

According to former additional attorney general Waqar Rana, the ECP lacked jurisdiction to disqualify any lawmaker in view of the Supreme Court’s judgement last year wherein MPA Salman Naeem was restored.

Why ECP did not take notice of Asif Ali Zardari’s Toshakhana vehicles case?

Even if it proceeds to do so, Rana continues, the top election supervisory body would not have sufficient legal merits to disqualify Imran as he has already tendered his resignation as MNA. However, another lawyer pointed out that Imran could still be considered an MNA since his resignation is yet to be accepted by National Assembly Speaker.

Meanwhile, sources confirmed to The Express Tribune that one section within the PML-N has suggested that instead of taking a declaration from the ECP, efforts should be made to reject Imran Khan’s nomination papers in light of the commission’s recent decision that ruled his certificates regarding PTI accounts were false.

In August last year, the Supreme Court held that the ECP has no power to consider the qualification or disqualification of an election candidate or an assembly member.

“In our view, 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,” said the majority judgment authored by Justice Munib Akhtar and endorsed by Justice Syed Mansoor Ali Shah.

According to the judgment, the ECP decided the eligibility of lawmakers in matters which were referred to it by the superior courts.

The judgment said that the question of qualification/disqualification is thoroughly tested by a dedicated procedure before the day of the election.

And of course, after the election, a losing candidate can always file a petition before the election tribunal and again bring the question into the issue. There is a direct appeal to this court against the decision of the election tribunal.

When such a framework is available, it is difficult to see why any such jurisdiction should be impliedly read into s. 103AA and/or s. 9 so as to empower the commission, the judgement noted.

“In our view, if at all Parliament has the legislative competence to confer such jurisdiction on the Commission in terms of a law made under Article 222 (an assumption we make for purposes of this judgment, without deciding), then it must be done explicitly and by express conferment and the use of clear language. The provision of s 103 AA and s 9 fall far short of this,” said the judgment.

Article 62

Article 62 says that 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 and honest and ameen.”

However, the 18th Amendment to the Constitution amended Article 62(1)(f) in the year 2010 to incorporate a condition that only a declaration, inter alia, of dishonesty given by a court of law could disqualify a candidate from contesting elections to parliament or a provincial assembly.

The amended constitutional provision of Article 62(1)(f) says that 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 top court in the Allah Dino Khan Bhayo case noted that disqualification under Article 62(1)(f) of the Constitution can only be imposed by or under a declaration made by a court of law.

By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision.

Accordingly, in the Sardar Yar Muhammad Rind case, the Supreme Court held that a judicial declaration disqualifying a candidate under Article 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence.

In the Panama Papers case, the court elaborated that even an election tribunal can only disqualify a candidate when its declaration is issued on the basis of the evidence before it.

Such a requirement is implicit in Article 10A of the Constitution which makes both due process and fair trial a fundamental right in lawful judicial proceedings.

Thus, the determination of a dispute relating to a right or liability, the recording of evidence including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a court of law.

The Islamabad High Court (IHC) had referred Faisal Vawda’s case to the ECP for adjudication. Currently, Vawda’s appeal is still pending in the apex court. During the hearing, the court also raised a question as to whether ECP has jurisdiction to disqualify him under Article 62 1 f of the Constitution.