The ball is now in the ECP’s court as it prepares to take up references seeking nothing less than disqualification of former prime minister and PTI chief Imran Khan. But legal experts warn that the top electoral body could end up dropping that ball if it disqualifies the former prime minister against the procedure.
Meanwhile, the PML-N-led ruling coalition is confident it has finally located the Achilles heel of its arch-rival – it has a ripe case in its hands as certain verdicts of similar nature delivered from the judiciary embolden its stance that an ‘immaterial error’ was an automatic disqualifier.
However, legal experts point 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 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.
Read more: Govt, opposition in rare consensus against lifelong disqualification
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.
SC says ECP cannot decide eligibility of candidates
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.
Also read: Reference for Imran’s disqualification filed
The court also observed that in so far as the question of qualification or disqualification, arising as part of an election dispute and being considered by the commission directly in terms of Article 218(3), is concerned, the provisions of Article 225 need to be kept in mind.
This provides as follows: “No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament).”
"To hold that there is an independent power inhering in the Commission in terms of Article 218(3) would trench upon this constitutional provision which, it is to be noted, is cast in strongly negative terms. This indicates that those election disputes as properly come within the scope of Article 225 is to be considered by an election tribunal and not elsewhere and before some other forum such as, e.g., the Commission purporting to exercise a jurisdiction said to inhere in it under Article 218(3)."
The court also said that it is no doubt for this reason that both in terms of s. 103AA and s. 9, the Commission was, and continues to be, “deemed to be an Election Tribunal to which an election petition has been presented”.
“Even here, interestingly, the jurisdiction conferred on the Commission came, and comes, with a sunset provision: it must decide the matter within the stipulated 60 days, else “the election of the returned candidate shall be deemed to have become final,” subject to a petition (if any) before the election tribunal constituted in terms of s. 57 of the 1976 Act and now s. 140 of the 2017 Act. (The question, whether a law can at all deem the Commission to be an election tribunal is one that, though interesting, need not trouble us here.),”says the judgment.
The apex court in the Hanif Abbasi case also noted that neither the ECP was a court nor a tribunal.
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.