ISLAMABAD: The Supreme Court will commence on Thursday the hearing of a petition moved on behalf of Prime Minister Imran Khan against the Election Commission of Pakistan’s (ECP) declaration that Akbar S. Babar — a founding but dissident member — was still a member of the ruling Pakistan Tehreek-i-Insaf (PTI).

The Islamabad High Court had on Dec 4, 2019 upheld the ECP declaration.

Challenging the IHC order, PTI chairman Imran Khan in his petition, filed through Barrister Umaimah Khan, said the high court had indulged in fact-finding and argued that the IHC decision came without defining the ambit and power of the ECP.

Headed by Justice Mushir Alam, a two-judge Supreme Court bench also comprising Justice Yahya Afridi will take up the matter next week.

Petition claims Akbar S. Babar is no more a member of PTI

The ECP, the petition alleged, had acted as a court of law or a tribunal and travelled beyond the scope of prayer rather extended its jurisdiction in matters of factual controversy, in contravention of the settled law. Thus by assuming the jurisdiction, the ECP gave a declaration in violation of the law and, therefore, is liable to be set aside being illegal, void ab initio and coram non judice, the petition argued.

The petition also asked if the ECP could treat any information received by it under Order 6(3) and (4) of the Political Parties Order 2002 (PPO) as adversarial form of complaint.

Mr Khan argued that the IHC did not consider the law laid down by the SC in the 2017 Hanif Abbasi case that information by a third party pertaining to the accounts of a political party could only be entertained subject to the condition that the verifiable information emanated from a credible and reliable source.

According to the petition, the IHC failed to acknowledge that the proceedings under Order 6 of the PPO were not a dispute resolution between two parties but in fact inquisitorial proceedings. The petition claimed that the IHC had ignored the question regarding ECP’s jurisdiction and whether it exceeded in exercising its jurisdiction and the membership status of Mr Babar, who is a complainant in the foreign funding case against the ruling party.

When Mr Babar’s membership had been cancelled permanently in accordance with the law and he himself had shown antagonism in his clear declaration of parting ways with the party, could the ECP still, that too while sitting as an inquisitorial body for determining the question of the funding of a political party, declare Mr Babar as a prominent member of the PTI, the petition wondered.

Was it not IHC’s duty to determine first ECP’s ambit, power and jurisdiction so that the commission could not exercise powers beyond its jurisdiction violating the fundamental rights, the petition asked.

It claimed that Mr Babar had been a PTI member since 1996, but in 2011 he surrendered his party membership and later the then PTI secretary general through a Sept 26, 2011 letter removed him from the party.

The petition contended that a single bench of the IHC, while going beyond the prayer, had dismissed the challenge. The order was challenged before a division bench of the IHC, but the intra-court appeal was also disposed of on Dec 12, 2019 and, according to the petition, did not cover the question and law of facts rather decided it in a ‘hurried manner’.

The petition claimed that the ECP had acted in excess of power without statutory competence and that the March 12, 2018 order by the commission was against the earlier decisions of the apex court.

It also alleged that the ECP by assuming jurisdiction of a court, which was not established by the law, was acting in violation of Article 175 of the Constitution.

Published in Dawn, March 13th, 2021