ISLAMABAD: The Election Commission of Pakistan (ECP) once again approached the Supreme Court on Tuesday, seeking to set aside different high courts’ orders in favour of PTI leaders, including Chairman Imran Khan, who had challenged contempt notices issued by the commission.
Moved through Advocate Sajeel Sheryar Swati, a set of six ECP petitions pleaded before the court that ever since the high courts granted interim relief to PTI leaders by allowing the ECP to continue hearing the matter but not pass any final order till the outcome of the petitions, PTI leaders were avoiding appearance before the ECP.
Besides, the high courts’ orders which restrained the ECP from taking adverse action against PTI leaders had effectively brought the commission at a standstill.
Earlier on Oct 13, the ECP had approached the Supreme Court seeking to consolidate and transfer all six challenges pending before different high courts to its contempt notice against PTI leaders instead of defending the commission’s stance for the issuance of the contempt charges against PTI leaders in different high courts.
The petition recalled that during Aug and Sept, 2022, the ECP had issued notices in exercise of its powers of contempt against Imran Khan, Asad Umar, Chaudhry Fawad Ahmed, Mian Shabbir Ismail, Danial Khalid Khokhar. Consequently, the ECP had asked the PTI leaders to appear in person or through their counsel before the commission to explain their positions.
Instead, the recipients, who were served notices for allegedly using ‘intemperate’ language against Chief Election Commissioner and ECP, challenged them before different high courts.
PTI leaders invoked the jurisdiction of different high courts including the Lahore High Court (LHC), Sindh High Court, Islamabad High Court and LHC-Rawalpindi Bench, to challenge the notices and contempt proceedings on the grounds that Section 10 of the Elections Act, 2017 —- the statutory provision regarding commission’s power to punish for contempt — was against the Constitution.
The PTI leaders had also sought relief in the cases from the high courts.
The petition also recalled that LHC’s single bench on Sept 7, 2022, also ordered constitution of a larger bench to hear the PTI petitions.
All the six petitions pertain to the same subject matter raising common questions of law i.e. challenges to the vires of Section 10 of the Election Act, 2017.
Now in the fresh set of petitions, the ECP argued that the high court orders were illegal and unlawful having effectively suspended Section 10 of the Elections Act, 2017, by restraining the ECP from taking ‘adverse action’ against the PTI leader.
The petitions contended that high courts’ orders did not explicitly suspend any provision of the Election Act and it did not change the fact that the order was illegal and unlawful.
By nullifying the powers of the ECP under section 10 of the Election Act, 2017, by virtue of the restraining order, the high courts have effectively granted a final relief to PTI leaders.
It is a settled law that no final relief can be granted at the interim stage when the court has not provided opportunity of hearing to all relevant parties to make their submissions and address the legal controversies.
The high courts’ orders have the effect of undermining the ECP’s authority and have effectively suspended section 10 of the election act not only with respect to the commission’s case, but any other person that commits contempt of the commission.
The grant of such injunctive relief is specifically barred by virtue of Article 199(4)(b) of the Constitution by the high courts, the petitions said.
Published in Dawn, October 26th, 2022