• Reference alleges disqualification under Article 63(1)(k) due to lawmaker’s past appointment as KP law officer
• Petitioner argues Article 63(2) applies only to post-election disqualification

ISLAMABAD: The Federal Constitutional Court (FCC) on Monday restrained the Election Commission of Pakistan (ECP) from proceedings further, pending final adjudication, against PTI lawmaker Sohail Sultan from Swat on a disqualification reference.

A two-judge Supreme Court bench, headed by Justice Aamir Farooq, also issued notices to the respondents while hearing an appeal filed by the lawmaker against the Peshawar High Court’s (PHC) Dec 19, 2025 decision, which declined to assume jurisdiction under Article 199 of the Constitution in an election dispute.

The respondents named in the appeal include the federal government through law secretary, National Assembly speaker, ECP and Nasrullah Khan, who had earlier filed the disqualification reference against PTI lawmaker Sohail Sultan.

A three-member ECP bench, headed by Chief Election Commissioner Sikandar Sultan Raja and comprising Nisar Ahmed Durrani and Shah Muhammad Jatoi, is seized with the disqualification reference against Mr Sultan.

The PTI leader was elected as a member of the National Assembly from (NA-4 constituency) Swat. A reference under Article 63(2) was sent by the NA speaker to the ECP, alleging disqualification under Article 63(1)(k) on the basis of the lawmaker’s previous appointment as a law officer in Khyber Pakhtunkhwa (KP).

The petitioner challenged the reference, as well as the jurisdiction of the speaker and the ECP, before the PHC. Earlier, the Khyber Pakhtun­khwa Assembly had enacted the Khyber Pakhtunkhwa Appointment of Law Officers (Amendment) Act, 2024, whereby the definition clause was amended to clarify that the services of law officers of the KP Advocate General’s Office do not fall within the “service of Pakistan”.

The amendment was given retrospective effect from Dec 4, 2014, expressly excluding law officers from the service of Pakistan.

In his appeal, the petitioner argued that the high court erred in law by declining to assume jurisdiction, despite the fact that the reference sent by the speaker under Article 63(2) was patently without lawful authority and coram non judice.

During the hearing, PTI Chairman Barrister Gohar Ali Khan appeared before the FCC on behalf of the petitioner and contended that Article 63(2) of the Constitution applies strictly to post-election disqualification. He urged that the high court should have entertained the plea and that the speaker should not have forwarded the reference to the ECP.

The petition further contended that the high court misdirected itself in law by holding that the ECP has jurisdiction to examine pre-election disqualification through a reference under Article 63, contrary to Article 225 and the settled constitutional scheme.

It was also argued that the high court failed to correctly interpret and give effect to the Khyber Pakhtunkhwa Appointment of Law Officers (Amendment) Act, 2024, which is a declaratory statute with retrospective operation and expressly excludes law officers from the “service of Pakistan.”

Moreover, the petition stated that reliance on the 1998 Muhammad Khursheed Khan judgement by the speaker is no longer legally sustainable after the enactment of the declaratory Act of 2024, which has removed the very basis of that judgement. It added that jurisdictional defects and constitutional violations are amenable to writ jurisdiction.

The petition further argued that the high court adopted a self-contradictory approach by acknowledging the need to determine the maintainability of the reference while refusing to adjudicate the issue itself, thereby perpetuating illegality.

Finally, the petition maintained that the speaker of National Assembly exceeded constitutional limits by forming an opinion on an alleged pre-election disqualification, a matter exclusively governed by Article 225 of the Constitution.

Published in Dawn, January 27th, 2026