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Thursday December 01, 2022

Analysis: When filed, it will be first reference against any CEC

July 31, 2022

KARACHI: The PTI’s decision to file a judicial reference against Chief Election Commissioner Sikander Sultan Raja and other members of the Election Commission of Pakistan — for violating electoral rules and judicial code of conduct — will be, according to former ECP secretary Kanwar Dilshad, the first time a judicial reference would be filed against a sitting CEC.

Dilshad says that “since the inception of the ECP — in 1956 — this is the first time a judicial reference will be filed against a CEC”, adding that while “CECs have historically not been liked by political parties, particularly those in the opposition, if a reference is filed in the Supreme Judicial Council it will be a first”. Legal and constitutional experts are also unsure of the merit of going to the SJC with such a move, given the role the CEC and ECP are meant to perform.

Explaining the process of moving for the disqualification of a sitting chief election commissioner (CEC), Supreme Court lawyer Salman Akram Raja says, “The way to remove the CEC is the same as one would a judge, it has to go to the Supreme Judicial Council under Article 209. So they will file a reference in the SJC to remove him for misconduct”.

Whether such a move succeeds, per Salman Raja, is another matter. “Filing a reference is easy but whether the Council looks at it or moves with it....on the face of it, there really doesn’t seem to be much of a case here. [The CEC] meeting with a delegation is nothing. He’s meant to meet people. He’s not a judge. He’s supposed to meet with political parties and listen to their grievances.”

Pildat President Ahmed Bilal Mehboob agrees that “[the PTI] doesn’t have sufficient grounds to go to the Supreme Judicial Council for a reference against the CEC or other members of the ECP. The ECP is not exactly like a court of law. They are dealing with other administrative matters as well, for which they are continuously interacting with political parties and leaders to get their feedback or discuss other issues”.

On a government delegation meeting the CEC and discussing the prohibited/ foreign funding case against the PTI, Salman Raja says that the PTI is probably thinking that “since the judgment has been reserved, they shouldn’t be meeting the CEC. At most what the PTI can say is that they should be given an opportunity as well and to explain if there’s any issue, they should be issued a notice. And that whatever — if anything — has been brought to the attention of the CEC by the government should not be moved on until they have had the opportunity to respond.” Raja adds that it still doesn’t seem to be much of a case.

Ahmed Bilal Mehboob says that as far as the prohibited funding case goes, “even if the government were asking for an expedited decision on the prohibited funding case, I don’t think that is violating any electoral laws.” Giving the example of last year’s case regarding an open ballot in the Senate polls, Mehboob says that “the SC had at the time given a verdict and as soon as it gave a short order, the PTI leadership had rushed to the ECP, where they were heard. They even held a press conference outside the ECP after that. There was nothing wrong with that and there is nothing wrong in this [the current government meeting with the CEC]. Even in courts, sometimes judges meet parties in chambers.”

For Ahmed Bilal Mehboob, this could be a “last-ditch effort to delay any possible verdict that may be coming — this is just my guess but I don’t see any other reason to go to the SJC against the CEC”.

Kanwar Dilshad says: “Every party has the right to go to the SJC under Article 209 to file a ref against a judge — since the CEC has powers equal to a judge of the SC — but to do that they would have to file full and detailed documents with evidence in the SJC. Once the SJC sees all the evidence, the CEC will be asked to provide a reply”.

Kanwar Dilshad does caution going down this road, though, saying that “Once the ECP gives its answer, the documents it furnishes will open a Pandora’s box which will be very difficult for the PTI to handle. If all the allegations the PTI is levelling against the CEC and ECP are rejected by the SJC, then the PTI’s political standing will also be affected”.

He also advises Imran Khan to understand that “his advisers are not showing him the right route. Past leaders used to call us to counter-check but Imran is the first leader who doesn’t do that, and only listens to his advisers....Remember what happened in the Qazi Faez Isa case, after which Imran and the PTI had to go back on their allegations.”

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