The Lahore High Court (LHC) on Wednesday restrained the Election Commission of Pakistan (ECP) from passing adverse decisions against former prime minister Imran Khan and Pakistan Tehreek-e-Insaf (PTI) leader Chaudhry Fawad in matters related to contempt.
The LHC Rawalpindi bench suspended show-cause notices issued to PTI Chairman Imran Khan and other leaders by the ECP. The electoral watchdog had issued contempt notices to both the leaders for levelling allegations against the ECP members, including Chief Election Commissioner Sikandar Sultan Raja. An LHC Rawalpindi bench led by Justice Jawad Hassan took up the petitions filed by the PTI members through advocate Chaudhry Faisal Hussain.
“This court has already granted interim relief in the aforesaid (identical) writ petition… therefore, it is directed that the proceedings may continue but no final order shall be passed till the outcome of the writ petition and in the meanwhile, no adverse action shall be taken against the Petitioner under the garb of the impugned notices, till the next date of hearing,” said the seven-page written order issued by Justice Hassan.
A similar order was passed regarding Fawad’s petition. The court also issued notices to the respondents to file reports and para-wise comments. The bench further issued notice to the Attorney General of Pakistan under Order XXVII-A of the Civil Procedure Code (CPC), which pertains to suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument
“Once, the learned Attorney General appears on the next date, this Court will examine the jurisprudence developed by the Hon’ble Supreme Court of Pakistan in the cases of Muhammad Hanif Abbasi and Dr Raja Aamer Zaman cited above”, the order stated. The court declared that the LHC chief justice would constitute a full bench which would hear other matters of September 29. “Therefore, the office is directed to place this petition too before the aforesaid Full Bench for the above date, after soliciting necessary orders from the Hon’ble Senior Judge”, it said.
During the hearing, advocate Faisal Hussain, counsel for both the PTI leaders, argued that under the Election Act, 2017, the ECP had “no jurisdiction to punish any person for contempt of Court rather the same powers vested with the Supreme Court or the High Court under Articles 175(2) and 204 of the Constitution”. He maintained that such powers could not be conferred to the ECP through subordinate legislation. The lawyer furthered that the impugned notices were issued to the petitioners without any legal justification and legal foundation as it is settled law that provisions of the Constitution cannot be overtaken by the provisions of “subordinate law”.
He pleaded that the wording used under Article 204 of the Constitution only referred to a court, meaning the Supreme Court or the High Court, and excluded all other quasi-judicial authorities and the executive as such impugned notices were “contrary to provisions of the Constitution”. Faisal also referred to two SC judgments which held that the ECP is neither a court nor a tribunal. He argued that the petitioner had freedom of speech under Article 19 of the Constitution and that Article 4 of the Constitution provided an inalienable right to all the citizens of Pakistan to enjoy the protection of the law and to be treated in accordance with the law.
Faisal further contended that under Article 5(2) of the Constitution, it was “an inviolable obligation to obey the Constitution and the law, and as the judgment of the Supreme Court of Pakistan is the law of the land which had to be implemented”.