IMMEDIATELY after the Election Commission of Pakistan’s (ECP) decision to disqualify former prime minister Imran Khan in the Toshakhana case was announced, a heated debate commenced over whether he still holds the reins of his party as the chairman or not, and would the current disqualification last until the end of the current National Assembly’s tenure, or for five years.

Though Law Minister Azam Nazeer Tarar explained in a press conference that the disqualification of Imran Khan under Article 63(1)(p) will be for five years, legal experts believe that the ineligibility only applies until Aug 13, 2023, when the lower house completes its current term.

In their view, once the assembly’s tenure ends, Imran Khan will once again become eligible to contest the next general elections, whenever they are called.

But as long as the disqualification stands and the commission’s order remains in the field, the question regarding his authority to lead the party as its chairman has already been answered by the Supreme Court in a 2018 judgement, issued while deciding a set of challenges to the Elections Act 2017 to determine, whether a disqualified parliamentarian could still hold party office.

However, a senior counsel explained that the 2018 judgement, which dealt with former prime minister Nawaz Sharif, was an altogether different matter and cannot be used as a precedent in the current situation, since that judgement came in the wake of the verdict in the Panama Papers case, which disqualified Mr Sharif for life under Article 62(1)(f) of the Constitution.

On July 28, 2017, a five-judge Supreme Court bench headed by Justice Asif Saeed Khosa disqualified Nawaz Sharif as a member of the parliament by holding that the former prime minister had not been honest.

At the time, the court had declared that any person who suffers from a lack of qualification under Article 62 or disqualification under Article 63 of the Constitution was debarred from holding the position of party head.

The judgment however had explained that the bar and prohibition will commence from the date of disqualification and continue until such time that the lack of qualification/disqualification continues.

That decision, however, had opened a ‘Pandora’s Box’ when it deemed illegal all decisions and orders passed by Nawaz Sharif as party head.

But in the case at hand, the counsel explained, ECP had not practically disqualified Imran Khan, but de-seated him from the Mianwali constituency of the National Assembly under Article 63(1)(p) of the Constitution, which means that the disqualification would last until the current term of the assemblies.

The counsel also highlighted that Mr Khan had not been declared guilty by a tribunal, thus, Article 62(1)(f) of the Constitution will not apply to his case.

But he may have to face serious consequence in case the trial court, where a case regarding corrupt practices has been referred by ECP, establishes the allegation of mens rea by holding that the concealment of information on Mr Khan’s behalf was intentional.

In Friday’s order, ECP had also directed its office to initiate legal proceeding and follow up action under Section 190(2) of the Elections Act 2010 against Imran Khan.

Under Section 190(2), a sessions judge can try the case whenever filed, but the aggrieved party or an individual can only move an appeal before a high court within 30 days of the order.

Under Section 174 of the Elections Act, any person guilty of the offence of corrupt practice could be punished with imprisonment for a term which may extend to three years or with fine which may extend to 100,000.

If the trial court finds the accused guilty, both lifetime disqualification and a five-year bar may be at play.

If the sessions court finds the accused guilty of concealment, then the ECP can, of its own volition or on an application of some party, issue a declaration that Section 232 of the Elections Act applies in this case.

Another senior counsel, Advocate Mansoor Usman Awan, highlighted a hitch in the ECP verdict, saying that Section 137 of the Elections Act requires the commission to take cognisance of a matter within 120 days after a reference was sent to it.

In this case, he explained the National Assembly speaker must have sent the reference in Dec 31, 2020 since the accused, according to the ECP order, was guilty of furnishing a false statement and incorrect declaration before ECP in the declaration of assets and liabilities for the year 2020-21.

We have to wait for the detailed verdict to learn how the commission has dealt with this issue, he said.

Published in Dawn, October 22th, 2022

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