Imran, Fawad say ECP members must recuse from hearing contempt case

ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan and PTI senior leader Fawad Chaudhry have submitted objections to the contempt of the Election Commission (ECP) and Chief Election Commissioner (CEC) case.

Advocate Faisal Chaudhry submitted objections to the Election Commission on behalf of Imran Khan and Fawad Chaudhry. Both the PTI leaders have contended that the ECP cannot lawfully issue show-cause notices and the whole commission must recuse from hearing contempt proceedings against the PTI leaders.

Significantly, the third alleged contemnor PTI leader Asad Umar appeared before the four-member Election Commission bench, along with his lawyer, Anwar Mansoor, who sought three to four days to submit a response to the contempt notice. When asked why no response was filed from their side, the lawyer said he would argue on the objections after February 20.

According to the objections, a copy of which is available with this correspondent, both PTI leaders have argued, under section 11(3) of the Contempt of Court Ordinance, 2003 any member whose contempt has been alleged and proceedings initiated, is barred to sit as an adjudicator in his own cause. Imran and Fawad said through their lawyer said that under section 11(3), the members of the ECP are barred and cannot sit as an adjudicator in the instant matter. They contended that to ensure fairness and transparency, the honourable member shall recuse himself forthwith. That is where the bailable warrants issued by this Commission have been suspended by the Lahore High Court, Rawalpindi Bench vide order dated 16-1-2023. Further, the High Court has also ordered to the fix main case before the larger bench,” they said.

Imran and Fawad have also challenged the vires of section 10 of the Elections Act, 2017 on the touchstone of Article 204, as the Election Commission of Pakistan (ECP) is neither a court nor a tribunal, as held in many judgments of the superior courts, wherefore, cannot be given the power to commence or proceed with contempt proceedings. In fact, the notice and show cause notice has also been challenged by the applicants through writ petitions before the honourable Lahore High Court pending adjudication. These cases remain pending, however, the orders of the honourable High Court shall have a blanket effect on the legality of these proceedings. It would be appropriate to stop them should the High Court come to the conclusion that Section 10 of the Elections Act 2017 is ultra vires the Constitution, the entire proceedings would abate. However, in the meantime, serious prejudice would have been caused to the PTI, which if this Commission is not biased, would consider and stop the proceedings.

Their lawyer contended that ECP otherwise cannot proceed in the instant matter, as the notice was issued by the Secretary to the ECP and DG Law and not by the Commission. Both of which are without any authority being contrary to Section 2(ix) of the Elections Act 2017 and Article 218 of the Constitution. Additionally, it was argued that Section 10 of the Elections Act 2017 & Rule 4 of the Election Rules 2017, does not empower the Secretary or the DG Law to issue the show cause notice at all, they are not included in the definition of Commission. The ECP, therefore, cannot proceed upon the show cause notice as it lacks lawful authority, the PTI lawyer objected.