Ambiguity surrounds ECP order

ISLAMABAD:

In a seemingly major blow to PT chief Imran Khan, the ECP has disqualified him just days after he made history after emerging victorious in most constituencies in recent by-polls.

However, the decision, as such does not impact his victories and the final outcome is still blanketed by a haze of legal ambiguities and nuts and bolts. Nonetheless, the sword of potential disqualification in future is still hanging upon him.

The lawyers believe the matter could just prolong and the final say on the matter of disqualification is subject to certain factors. They reckon that the ECP's decision is “just a message” to Imran Khan against the backdrop of the prevailing political situation.

Moreover, election petitions may be filed in election tribunals for lifetime disqualification of Imran Khan on the charge of discrepancies in his last three years' annual returns which are attached to nomination papers submitted in recent by-elections by him.

Other than the Toshakhana case, the political rivals of the former prime minister are also labouring to get him disqualified in the foreign funding case.

The ECP’s ruling read: “As the respondent (Imran Khan) has made false statements and incorrect declaration, therefore he has also committed offence of corrupt practices defined under Section 167 and 173 of the Elections Act, 2017, punishable under Section 174 of the Elections Act, 2017. The office is directed to initiate legal proceedings and to take follow-up action under Section 190(2) of the Elections Act, 2017.”

In view of the ECP order, the proceedings against a person for being involved in “corrupt or illegal practice” may be initiated on a complaint made by a person or by the commission.

But if a complaint made by the person proves to be false, based on bad faith or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs50,000 or with both.

The electoral watchdog may direct that the summary trial of an offence under this Act may be conducted in accordance with the provisions of Chapter XX of the Code.

Section 174 of the Act also says that 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 a fine which may extend to one hundred thousand rupees or both.

‘Weak moral ground’

A lawyer, who has examined the record of Imran’s Toshakhana case, pointed out that Imran has a very weak case on moral grounds as he has no justification regarding the source of funds to purchase gifts. He also wondered why Imran Khan concealed the details of the gifts in question in the annual statements submitted before the ECP.

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The lawyer believes that if the sessions court declares Imran Khan guilty then questions regarding the applicability of Article 62 (1)(f) may arise wherein he may be disqualified for life. However, he said that the sessions court will examine Imran’s intent over his failure to disclose details of gifts in the annual statement.

He also claimed that Imran’s source to purchase the gifts was not matching with his annual returns.

Legal opinion divided

However, lawyers are in general divided over the consequences of conviction under section 174 of the Elections Act as one section of lawyers holds that the consequence of this conviction could disqualification for five years and the other points out that disqualification of a lawmaker on account of corrupt practices was not defined.

They contend that in case of proving guilt on the charge of corrupt practices, there will be no disqualification.

‘Unconstitutional, unlawful’

Reacting to the ECP’s judgment, Imran Khan's counsel Ali Zafar says that this is an order that is unconstitutional and unlawful.

The barrister maintained that firstly, all gifts were paid for and declared as of June 30 and explained that the gifts were also declared in the income tax returns.

“The gifts which were sold, their proceeds of sale and bank accounts were disclosed in the statement of assets as well as the income tax returns. The capital gain tax paid on the sale of gifts was also paid. Therefore, the ECP decision that the same was not declared is contrary to the record."

He said that reference was sent under Article 62(1) f of the Constitution. However, he added, the ECP was not a court of law and cannot disqualify anyone under this article.

“ECP has relied on Article 62(2)p. This states that one must be disqualified under any law before the reference is sent and does not give jurisdiction to ECP to decide any issue of disqualification,” he added.

"The ECP has relied on sections 137, 167 and 173 of the Election Act. These sections say that ECP can file a complaint in case of any declaration before the tribunal within 120 days of the filing of the statement. But it does not say that ECP can de-seat or disqualify,” he said pointing out that the poll supervisor has sent the case to the tribunal for trial to determine if any misdeclaration has taken place after many years which they could not do.

Also, the ECP passed the de-seating order against Imran before the trial has even started. Sections 137, 167 and 173 of the Act do not give any power to ECP to disqualify, the counsel said.

He also stated that there is no provision in the election act under which ECP can disqualify or de-seat anyone except after trial by the tribunal.

"The judgement is hence absurd. Also, it is not a judgement in the eyes of law because one member has not even signed it,” he added.

Read more ECP disqualifies Imran in Toshakhana reference

Likewise, lawyer Faisal Siddiqi also wondered "how they could release questions if all five have not signed. On this ground alone, the judgement will be set aside”.

Meanwhile, it was also learnt that Imran Khan would challenge the ECP’s judgement in the Islamabad High Court (IHC).

However, the IHC Chief Justice Athar Minallah may not hear the matter as his name is under consideration before the Judicial Commission of Pakistan (JCP) for his elevation to the Supreme Court.

Generally, the superior courts grant interim relief in election matters.

On the other hand, it is being witnessed that Chief Justice of Pakistan (CJP) Umar Ata Bandial's view on the financial transparency of public holders is strict.

Lawyers are of the view that if Imran Khan fails to give a money trail regarding the purchase of gifts then he may find himself in serious trouble.

During the PTI government, Imran Khan was reluctant to disclose the details of the assets. The PTI-led government had also challenged the Pakistan Information Commission (PIC) order regarding the disclosure of Toshakhana gifts in the Islamabad High Court by saying that the disclosure of gifts may cause damage to the interest of Pakistan in the conduct of international relations.

‘Big test for judiciary’

Meanwhile, ex-prime minister Shahid Khaqan Abbasi said that the matter was a big test for the superior judiciary in the Imran Khan matter, adding that it was a big question as to whether the SC will initiate proceedings against as it did in the Nawaz Sharif case.

Renowned lawyer Salman Akram Raja believes that if someone is to be declared disqualified as “ghair-sadiq” on account of the filing of wrong statements then the declaration of can only come from a court, not the ECP, under Article 62(1)(f), the ECP has correctly refrained from the such declaration.

He said that filing a wrong statement of assets does not lead to disqualification.

“Disqualification can occur only if prosecution is commenced within 120 days of filing and upon conviction sentence of two years or more is awarded. This is no longer possible."

Raja stated that if Imran Khan filed deficient asset statements, prosecution under section 137 of the Election Act 2017 was possible within 120 days of the filing of such statements.

"The last such statement was filed on 31.12.2021. The prosecution could have commenced by 30.4.2022. This was not done", he added.

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Senior lawyers believe that the PTI legal team should have challenged the ECP decision in the IHC. They wonder that when the PTI was accusing the ECP as biased then proceeding in this matter should have lingered on to wait a favourable time for adjudication.

Another lawyer Hafiz Ahsaan Khokhar commented on the subject that while issuing the verdict, the Election Commission of Pakistan has stretched its jurisdiction from violations of certain provisions of the Election Act 2017 to Article 63 P, and it would be every likelihood that the decision of ECP would not be sustainable in appellate forums on many legal grounds including that whether the ECP being an administrative or quasi-judicial forum can hold a disqualification under Article 63 of a member of parliament, and that would be a moot legal point for the constitutional courts in next round of litigation.

He further said that the parliament has not specifically given any power to determine the qualification or disqualification mentioned in Articles 62 and 63 of the Constitution of a member of Parliament in Article 218(3) or in the Election Act 2017 to the Election Commission of Pakistan, and where there is no such power clearly given or prescribed in law, the order passed by the Commission relating to the determination of qualification or disqualification with reference to Articles 62 and 63 would not be an order being competently passed and would be maintainable in law.

He further stated that though it is a good case on facts with reference to section 137 read with section 173 D of the Election Act 2017 to the extent of declaration whereby every member of an assembly and senate shall submit to the commission, on or before December 31 each year, a copy of his statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding thirtieth day of June on Form B, and 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 but on the other side such corrupt practices could not be determined until a regular procedure of trial would take place by a competent court, which the Election Commission of Pakistan lacks the jurisdiction.

He said that there would be another point in future litigation of the present case that after tendering the resignation of a member can Speaker of the Nation Assembly can send a reference against a member to the Election Commission of Pakistan.

Hafiz Ahsaan Ahmad Khokhar said that there could be no set formula fixed in section 137(4) of the Election Act 2017 with regard to any omission to list an asset and make a declaration of dishonesty and impose the penalty of lifetime disqualification unless dishonesty was established in appropriate judicial proceedings.