PESHAWAR: The Peshawar High Court on Thursday issued a notice to the Election Commission of Pakistan for response to a petition of Khyber Pakhtunkhwa Chief Minister Mahmood Khan seeking to declare that the commission’s code of conduct for by-elections in the province is not applicable to him.
A bench consisting of Justice Mohammad Ibrahim Khan and Justice Syed M Attique Shah fixed Oct 3 for next hearing into the petition requesting it to declare illegal the Sept 19 notice issued to the chief minister over the alleged violation of the poll code of conduct by using state machinery, including a helicopter, for a public meeting of former prime minister Imran Khan in Charsadda.
The petitioner requested the court to declare that the Elections Act, 2017, and the rules made under it in respect of the code of conduct are applicable to the certain class of people mentioned in Section 233 of the Act and not to him.
He also sought the court ruling that the ECP or any of its functionaries can’t go beyond the mandate of sections 233 and 234 of the Elections Act in respect of application of the code to persons not mentioned in the Act, especially public officeholders.
CM insists code of conduct for by-elections not applicable to him
The petitioner’s counsel, Ali Gohar Durrani, contended that his client was excluded from the list of persons mentioned in sections 233 and 234 of the Act, so he could not be proceeded against under the said provisions.
He prayed the court to direct the ECP to withdraw the Sept 19 notice.
The counsel argued that Section 233 of the Elections Act provided for the code of conduct for political parties, contesting candidates, etc.
He said the section in question declared that the ECP should frame a code of conduct for political parties, election candidates, agents and polling agents, security personnel, media and election observers.
Mr Durrani said Section 234 of the Act provided for the monitoring of the election campaign and that the section was clearly made applicable to certain classes of persons including the candidates and political parties.
He argued that on Sept 17, a misconceived notice was served on the petitioner by the district monitoring officer, Charsadda, regarding ‘implementation of code of conduct’ for the conduct of bye-election in NA-24, Charsadda, and as a result proceedings were initiated against the petitioner.
Mr Durrani contended that while proceedings in the CharsaddaDMOwere pending, a similar notice on the matter was served on the petitioner by the ECP Islamabad.
He added that the petitioner appeared before the ECP, Islamabad, through his counsel and advanced arguments in the preliminary hearings on the point of maintainability of the proceedings as the matter was already sub judice with the Charsadda DMO.
The lawyer said the ECP directed to file a reply to the notice and adjourned hearing on the matter to Oct 3.
He argued that the law could not be allowed to be interpreted by any forum other than the constitutionally recognised forums comprising the Supreme Court and high courts.
Mr Durrani said the law did not allow the ECP to interpret the law and include the petitioner in the provision when the same was not included in it.
He added that once proceedings had been initiated in one forum, sending a notice regarding the same wasn’t allowed under the law.
Published in Dawn, September 30th, 2022