Ruling sparks debate on length of disqualification

KARACHI: The ECP order in the Toshakhana case has led to a debate on exactly how long former prime minister Imran Khan can be disqualified for. During a press conference on Friday, Law Minister Azam Nazeer Tarar had said that after the ECP order Imran Khan stood disqualified for five years. Not everyone in the legal community agrees though.

Calling it a “carefully drafted decision”, journalist and lawyer Muneeb Farooq explains that the ECP has used Article 63(1)(p) for its order, which is unambiguous in that the disqualification will only be for the time being — “which means as long as this assembly lasts. When the assembly dissolves, the disqualification ends too.” However, Farooq cautions that the second part of the ECP order relates to penal proceedings for ‘corrupt practices’. He says, “Under the Elections Act, if someone has been convicted for corrupt practices they can face three kinds of penalties: imprisonment, a financial penalty and also disqualification for some years. So there is no lifetime disqualification in this.”

According to Farooq, “Imran has been fortunate enough that somehow, while the PML-N wanted his disqualification to be done under Article 62(1) (f), the ECP rightly refrained from issuing such disqualification because under various judgments the Supreme Court has said that the ECP is not a court of law and for any MNA to be declared disqualified for life, the decision has to come from a competent court of law which the ECP is not. So the ECP has been technically right, very cautious and issued an order that is likely to be upheld in the higher courts. Initially when it came out, I was a bit apprehensive [about the disqualification part] but since some of the details have come out, one can see it’s a carefully drafted decision.”

Disagreeing with the very idea that Imran Khan has been disqualified for five years, Supreme Court lawyer Faisal Chaudhry says, “Imran Khan can contest an election even tomorrow.” He adds, “If at all it is a disqualification, it has been done away forthwith and if Imran so decides, he can even take oath on his newly elected seat. There is no bar. The ECP’s decision is at the minimum legally incorrect to the extent of absurdity and will not stand in the court.”

In a Twitter thread, Supreme Court advocate Salman Raja takes a critical look at the ECP verdict, saying that if Imran Khan had deficient asset statements, prosecution “under Section 137 of the Election Act 2017 was possible within 120 days of the filing of such statements. The last such statement was filed on [Dec 31, 2021]. Prosecution could have been commenced by April 30, 2022]. This was not done.” According to Raja, “Filing a wrong statement of assets does not lead to disqualification. Disqualification can occur only if prosecution is commenced within 120 days of filing and upon conviction, a sentence of two years or more is awarded. This is no longer possible”.

Lawyer Taimur Malik refers to the view “shared by many lawyers”, that the ECP’s decision, “of which only the last two pages have been shared so far, relates to Imran Khan’s de-seating from his current seat in parliament. This is being interpreted to mean that he may even be able to take oath as a member of parliament on one of the seats won by him in the recent by-elections as the de-seating relates to the submission of the assets statement pursuant to his current seat in parliament. This certainly implies that he can definitely contest the next general elections.”

This is echoed by lawyer Abuzar Salman Niazi who says that “at the moment, the disqualification (period) is just one time”. Adding to Muneeb Farooq’s analysis regarding possible disqualification for corrupt practices, Niazi says that: “if Imran is found guilty and convicted on the charges of committing ‘corrupt practices’, then the disqualification will be five years from the date of release”.

Lawyer Salaar Khan explains the disqualification debate in detail, including the possibility or not of a lifetime disqualification: “Some have suggested that ‘for the time being in force’ in Article 63(1)(p) is a reference to the period of disqualification — and that the disqualification only remains valid for one election cycle. However, under a broader reading of the Elections Act, this seems less plausible. The Elections Act itself provides that a disqualification for corrupt practices shall be for a period of ‘up to five years’. That period is to be specified by the ECP, and becomes the effective period of disqualification.”

Khan adds that “the calculus of the period of disqualification, however, is complicated by what may ensue afterwards. If proceedings are subsequently initiated under Article 62(1)(f), urging a court to declare that Imran Khan is no longer sadiq and ameen, then the disqualification could effectively last for life. Alternatively, if the decision results in a conviction leading to a sentence of two years or longer , then the period of disqualification would effectively be five years under Article 63(1)(h). Of course, all of this assumes that the detailed decision will first survive the inevitable appeal.”