LAHORE: The Lahore High Court on Thursday restrained the Election Commission of Pakistan (ECP) from taking adverse action against PTI Chairman Imran Khan in the proceedings to debar him from heading the party following his disqualification from the NA-95 (Mianwali-1) constituency for allegedly filing incorrect statement of assets.

After holding a marathon hearing with multiple intervals, Justice Jawad Hassan also framed three moot points with an observation that the case related to interpretation of some articles of the Constitution and certain provisions of the Elections Act 2017, involving infringement of the fundamental rights of the petitioner.

The points include whether the ECP can pass any declaration in the light of Article 218 of the Constitution and the judgements passed by the Supreme Court and whether the word “declaration” falls under the wording “conduct” and “organise” as used under Articles 218(3) and 219.

The court would also examine whether power of declaration has specifically been mentioned in the Election Acts and the rules framed thereunder in the light of judgements of the Supreme Court.

At the outset, Senator Barrister Syed Ali Zafar appeared before the court and argued that his client (Imran Khan) was basically aggrieved by the assumption of jurisdiction by the ECP through issuance of the impugned order and the notice.

He sought interpretation of Articles 218(3) and 219, read with Articles 4 and 5 of the Constitution and Sections 8(c) and 9 of the Elections Act, in the light of Article 62(f) of the Constitution.

He pointed out that a reference against the petitioner was submitted to the National Assembly speaker who sent the same to the ECP to decide the matter.

The counsel maintained that the pivotal point involved in this case was whether the ECP could pass any declaration which was not mentioned in Article 218(3) of the Constitution.

When asked about the maintainability of the petition, Barrister Zafar referred to various judgements of the Supreme Court and said the petition was maintainable.

However, ECP’s legal adviser Imran Arif Ranjha objected to maintainability of the petition on the touchstone of Articles 62(3) and 222 of the Constitution, coupled with pendency of the order challenged by the petitioner before the Islamabad High Court.

Justice Hassan, however, said the Supreme Court had in its order observed that all the courts could decide the election petition. The judge admitted the petition and issued notices to the respondents, including those MNAs who filed a reference against Imran Khan with the NA speaker.

The judge asked the attorney general of Pakistan and the advocate general for Punjab to assist the court in the case.

The judge observed that the Supreme Court, in a judgement titled “Ali Asjad Malhi versus Ms Syeda Nosheen Iftikhar and others” (PLD 2023), ruled that the court could interfere in the ECP’s decision when these involved the exercise of illegal, or mala fide, or manifestly arbitrary or unjustifiable jurisdiction.

“Hence, till the next date of hearing, no adverse action shall be taken against the petitioner,” the judge said in his order.

The court would resume the hearing on Jan 11.

Published in Dawn, January 6th, 2023