• Swati, Fawad fail to file replies to notices in prescribed time
• Notice will be issued to PTI chief if ECP decides to pursue matter
• Sentence may include jail term with fine as well as disqualification
ISLAMABAD: The Election Commission of Pakistan is set to weigh legal options on Monday (today) for initiating contempt proceedings against two federal ministers for their recent onslaught on the institution and the Chief Election Commissioner (CEC) after their failure to submit replies to the notices issued to them within the stipulated time.
While issuing notices to Minister for Railways Azam Khan Swati, who is also senior vice president of the Pakistan Tehreek-i-Insaf, and Minister for Information Fawad Chaudhry on Sept 16 for their tirade against the ECP and the CEC, the commission had asked them to provide within seven days evidence of the allegations.
Informed sources told Dawn that the ECP was slated to hold an informal meeting on Monday to weigh legal options for pursuing the matter related to the salvo of accusations by the federal ministers.
Mr Chaudhry filed an application with the commission seeking six more weeks to respond to the notice, whereas the senior vice president of the ruling PTI chose to ignore the notice.
A credible source in the ECP was of the opinion that an application seeking an unreasonably long time carried no legal value and was bound to be dismissed. He said the commission in its informal meeting would seriously consider the option of initiating contempt proceedings against those responsible for a smear campaign that had visibly been stepped up after the issuance of notices. According to him, Section 10 of the Elections Act, 2017 that deals with ECP’s power to punish for contempt read: “The Commission may exercise the same power as the High Court to punish any person for contempt of court and the Contempt of Court Ordinance, 2003 (V of 2003), or any other law pertaining to contempt of court shall have effect accordingly as if reference therein to a “court” and to a “judge” were a reference, respectively, to the “Commission” and the “Commissioner” or, as the case may be, a member of the Commission.”
He said Rule 4 of the Elections Rules 2017 explained the procedure relating to contempt of the ECP.
Under sub-rule 1 of Rule 4, the ECP may take cognizance of its alleged contempt under Section 10 of the Elections Act 2017, either suo motu or on a petition filed by any person on account of willful disobedience of any order, instruction or direction of the ECP or a breach of undertaking submitted to the commission or using intemperate language against the commissioner, or the commission or any of its members.
Under sub-rule 4 of Rule 4, a notice issued to a person requires him to appear in person and unless the commission otherwise directs, he is supposed to appear on each date of hearing and, if so required to enter into recognizance with one or more sureties.
Sub-rule 5 of Rule 4 says, “Where the alleged contempt by any of office bearer or member of a political party enlisted under the Act consists of any of the grounds mentioned in sub-rule 1, the notice shall be served on the party leader of such political party and such of office bearers or members of the party who at the time of alleged contempt were responsible for such act”.
According to sub-rule 6, where the ECP is satisfied by an affidavit or otherwise that the respondent is or, as the case may be, respondents are avoiding service, it may direct issuance of bailable or non-bailable warrants for his or their arrest.
Sub-rule 7 says, “Where the contempt consists of words or any act of visible sign which tends to prejudice a party to the proceeding before the Commission or tends to scandalize the Commissioner or any member of the Commission or otherwise tends to bring the Commissioner or a member of the Commission in relation to his office into hatred, ridicule or contempt, the matter shall in the first instance be placed before the Commissioner and such member as the Commissioner may nominate to consider the expediency or propriety of taking action in the matter.”
Under sub-rule 8 of Rule 4, if the ECP on the basis of opinion expressed by CEC or the members mentioned in sub-rule 7 decides that action should be taken in the matter, a notice of proceedings shall be issued to the Advocate General, Islamabad, who shall in that event either conduct proceedings himself or depute an additional advocate general or a deputy or assistant advocate general for the purpose.
Sub-rule 9 requires the respondent to file a written reply at the first hearing in answer to allegation against him and shall be afforded reasonable opportunity to adduce evidence in his defence.
Sub-rule 10 reads, “No oath shall be administered to the respondent unless he chooses to appear as his own witness.”
Under sub-rule 11 where the contempt is committed in the face of the ECP, CEC or a member of the Commission in Chambers, the Commission, the Commissioner or the member, as the case may be, may proceed forthwith to determine the guilt of the respondent.
Sub-rule 12 reads, “If at any time during the pendency of the contempt proceedings or thereafter but before the execution of the sentence, the respondent tenders unqualified apology, the Commission may consider such apology and make such order as it may consider appropriate”.
The commission may award sentence of imprisonment, fine or both as it may deem fit in the circumstances of each case, under sub-rule 13 of Rule 4.
An official explained that conviction simply meant disqualification to hold any public office.
This was not the first time when the ECP faced strong criticism and serious allegations from the ruling PTI as the commission after the March Senate polls, too, had advised the party to stop mudslinging and come up with evidence if it had any objections to the constitutional requirements, declaring that the institution would not succumb to any pressure.
In a renewed onslaught on the ECP, PTI leader and minister Swati on Sept 10 said such institutions should be set on fire after accusing the commission of taking “bribes and always rigging” polls. He also alleged that the ECP was “poking fun at the government” and “trying to ruin the democracy”.
The caustic remarks, which were made only days after the ECP had raised a number of objections to government’s unilateral decision of introducing voting machines in the next general elections, ignited a political firestorm at a Senate standing committee on parliamentary affairs meeting held for discussion and voting on two key election-related bills.
A fresh blistering attack on the ECP was launched the same evening when Minister Chaudhry, accompanied by Mr Swati and Adviser to the Prime Minister on Parliamentary Affairs Dr Babar Awan, accused the commission of becoming opposition’s headquarters and alleging that the CEC was acting as a “mouthpiece of the opposition”.
The information minister told the presser that the CEC should not become a tool in the hands of small political parties. He alleged that the CEC had played politics of ‘stupid’ objections to voting machines. “If they want to do politics, then response will come,” he warned.
The diatribe against the ECP continued amid strong reaction from civil society and opposition parties to Mr Swati’s remarks of setting fire to such institutions as it went viral on the social media.
The ECP finally on Sept 16 issued notices to Mr Chaudhry and Mr Swati, seeking evidence regarding the allegations and diatribe.
However, in what appeared to be a move to create a rift within the ECP, Mr Chaudhry on Sept 19 asked two ECP members “to review” decisions of CEC Sikandar Sultan Raja. “I would like to ask the two members of the ECP to come forward and review the decisions of the CEC,” said the information minister while addressing a news conference with Minister for Science and Technology Shibli Faraz.
Next day the government ramped up the criticism but singled out the CEC, with Mr Swati warning him not to “mess around” with the government.
In his renewed tirade, the PTI’s senior vice president, accompanied by PM’s aide Babar Awan, raised questions over CEC’s appointment. Mr Swati claimed that the government had to swallow a “bitter pill” on his appointment.
Published in Dawn, September 27th, 2021