High court stops ECP from acting against governor, chief minister

Published March 31, 2022
This combo photo shows KP Governor Shah Farman (left) and  Chief Minister Mahmood Khan. — DawnNewsTV
This combo photo shows KP Governor Shah Farman (left) and Chief Minister Mahmood Khan. — DawnNewsTV

PESHAWAR: The Peshawar High Court on Wednesday stopped the Election Commission of Pakistan (ECP) from taking any adverse action against the provincial governor, chief minister and a minister over notices issued to them for violating the revised code of conduct for local body elections.

A bench consisting of Justice Musarrat Hilali and Justice Ijaz Anwar directed the ECP to file comments on two related petitions challenging the revised code of conduct issued by the commission on March 10 to bar public officeholders from campaigning in the second phase of local body elections in 18 districts of the province.

It fixed April 12 for the next hearing into the case and issued a notice to the attorney general for Pakistan seeking his response to the pleas of the petitioner.

Seeks response to petitions against revised code of conduct for local body polls

One petition was filed by Governor Shah Farman, whereas the other was jointly filed by Chief Minister Mahmood Khan and provincial minister Anwer Zeb.

All three petitioners have challenged the ECP’s order of March 10 through which the revised code of conduct was issued and subsequent actions taken by the officials including issuance of notices to them.

The district monitoring officer had on March 11 issued notices to the three petitioners along with the Prime Minister Imran Khan for attending a public meeting in Lower Dir the same day in violation of the election code.

They were also fined Rs50,000 each by the DMO. Their appeals have been pending with the ECP, Islamabad.

Advocate Ali Gohar Durrani appeared for the petitioners and contended that the ECP had overstepped its constitutional authority by issuing the revised code of conduct following promulgation of an ordinance through which changes were made in the Elections Act, 2017.

He said the KP governor enjoyed constitutional immunity from any criminal and civil proceedings against him but despite that he was issued notice by the DMO.

The lawyer said the governor was representative of the federation in the province.

He requested the court to declare that neither the ECP nor its district monitoring officer (DMO) is empowered to seek the governor’s appearance before them through notices under the immunity guaranteed to him under Constitution as well as in light of the amendments made to the Elections Act 2017 through the Ordinance I of 2022.

The counsel contended that the governor was ‘well within his rights and constitutional guarantees as well as protocol and custom’ to accompany the prime minister during visits to the province.

He added that under Article 105 of the Constitution, his office was ceremonial and was different from other public offices, as there was no authority vested in him to do anything on his own except to act on the advice of the provincial government or the chief minister.

The lawyer requested the court to declare the revised code of conduct a negation of the principles of the independence of judiciary and a violation of the Constitution and Elections Act, 2017.

He argued that Section 233 of the Election Act, 2017, provided for the code of conduct for political parties, contesting candidates, security forces, media, etc, while Section 234 was related to the monitoring of election campaign.

The counsel contended that while the parliament was not in session, the president of Pakistan promulgated the Elections (Amendment) Ordinance (Ordinance I of 2022) on Feb 21.

He said through that ordinance, Section 181-A was inserted into the Elections Act, 2017.

“That amendment in furtherance of the democratic ideals allows members of parliament, provincial assembly, or elected members of local government, including members holding any other office under the constitution or any other law, to visit or address public meetings in any area or constituency,” he said.

The counsel contended that after insertion of Section 181-A in the Act, the actions of the petitioners stood ‘well within the mandate of the law’.

He added that the revised poll code was against all the norms of legal principles and had set at naught the said amendment.

Published in Dawn, March 31st, 2022

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