Wednesday February 01, 2023

Asad moves SC against ECP contempt notice

December 06, 2022

ISLAMAABAD: Pakistan Tehreek-e-Insaf (PTI) Secretary General Asad Umar on Monday requested the Supreme Court (SC) to declare Section 10 of the Election Act 2017 as unconstitutional, and suspend the contempt notice issued to him by the Election Commission of Pakistan (ECP).

He submitted a concise statement in the apex court through his counsel Anwar Mansoor Khan, praying to declare that the impugned notice dated August 19, 2022 was in access of jurisdiction and authority of the ECP.

He prayed to the apex court to declare that during the pendency of the petition, the impugned notice of the ECP should be suspended and the commission be restrained from taking action or proceeding in the matter.

On Nov 15, a three-member SC bench, headed by Chief Justice Umar Ata Bandial, had issued notices to former prime minister Imran Khan, Fawad Chaudhry and Asad Umar in the ECP petition, seeking consolidation of all petitions of the PTI against its contempt notices.

Asad Umar, in his concise statement, contended that Article 204 of the Constitution clearly refers to a court to mean the Supreme Court or the high court, adding that sub-Article 3 of Article 204 categorically refers to exercise of power conferred on a court by Article 204, thus the Election Commission not being a court cannot exercise such power under 204.

He submitted that in cases of PLD 2018 SC 189, SCMR 1303, the Supreme Court categorically held that the ECP was not a court of law. Similarly, he contended that Article 175(2) of the Constitution states that no court shall have jurisdiction of a court unless it is conferred on it by constitution or by law.

“No conferment of the jurisdiction as a High Court has been conferred on the Election Commission of Pakistan,” Asad Umar contended. He submitted that Section 10 of the Election Act, 2017 is contrary to the separation of powers as enshrined in the Constitution and liable to be struck down.

He further submitted that he had filed a petition in Sindh High Court stating that the ECP, under the provisions of Article 204 and 175 of the Constitution, had no authority to proceed in the matter as Section 10 of Election Act, 2017 is ultra vires to the Constitution.

However, in its petition, the ECP had submitted before the court that in August and September, 2022, it issued notices in exercise of its powers of contempt, adding that the recipients of these notices invoked the constitutional jurisdiction under Article 199 of different high courts against the notices and contempt proceedings through four different petitions on inter alia the ground that Section 10 of the Elections Act, 2010, which is the statutory provision regarding the Election Commission’s power to punish for contempt, was ultra vires the Constitution. It had prayed the apex court to transfer and consolidate the six petitions before any one high court in the interests of expeditious disposal and justice.