Ex-Indian SC judge finds Imran disqualification ‘totally flawed’

Joining the chorus of jurists perplexed by ECP’s decision to disqualify PTI chief Imran Khan in the Toshakhana reference, former Indian Supreme Court Judge Justice Markandey Katju has said there was a “fundamental defect” in the judgement.

In the absence of any prior verdict of the election tribunal against Imran Khan holding him guilty of corrupt practice, he pointed out, “the judgement of the ECP is totally flawed, misconceived and incorrect as it is not based on any judgement of the election tribunal”.

According to the ECP’s verdict, the poll supervisor has disqualified Imran under Article 63(1)(p) of the Constitution, read with Sections 137 (submission of statement of assets and liabilities), 167 (corrupt practice) and 173 (making or publishing a false statement or declaration) of the Elections Act 2017. Meanwhile, the ECP also directed for legal action to be initiated against Imran under Section 190 (2) (proceedings against a person for being involved in corrupt or illegal practice) of the Elections Act 2017.

Section 137(4) of the Pakistan Election Act, 2017 states: “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 120 days from the date of submission of the statement be proceeded against for committing the offence of corrupt practice “.

Meanwhile, Section 139(2) states that corrupt practice is as defined in Chapter X of the Act. In Chapter X is section 167(a) which makes filing a false statement a corrupt practice.

The Indian jurist explained that Section 140 provided for an election tribunal, and section 142 states that an election petition must be filed within 45 days of the declaration of the result in the official gazette.

Section 173(d) relates to filing a false statement of assets.

Read more: Imran disqualified

Thus, he added, there is a complete procedure given in the Pakistan Election Act as to how an election result can be voided for a corrupt practice (which includes filing a false declaration of assets).

This can only be done by the election tribunal, not by the election commission, justice Markanday emphasised

He further elaborated that Section 63(1)(p) of Pakistan’s constitution states that a member can be disqualified if he is disqualified under any law.

Section 63(2) stipulates that If any question arises whether a member of parliament has become disqualified from being a member, the speaker, unless he decides that no such question has arisen, refers the question to the election commission within 30 days

Section 63(3) states that the election commission shall decide on the reference within 90 days.

He noted that Section 63 of the Constitution undoubtedly empowered the election commission to disqualify a member of the National Assembly. However, he stressed that a correct interpretation of the provision can only mean that the commission can do so in regard to an alleged corrupt practice only after a verdict finding a corrupt practice has been committed is given by the election tribunal.

“This interpretation is the only logical one. Otherwise, we will have to say that both the Election Tribunal and the Election Commission can decide on allegations of corrupt practice. What if they give conflicting verdicts? This would be anomalous.”

“There is no verdict of the election tribunal against Imran Khan holding him guilty of corrupt practice. Hence the judgement of the election commission is totally flawed, misconceived and incorrect as it is not based on any judgement of the election tribunal,” he added.