ECP can’t disqualify a parliamentarian on private complaint: LHC

LAHORE: The Lahore High Court has ruled that the Election Commission of Pakistan (ECP) enjoys no powers to disqualify a parliamentarian on a reference filed by a private person.

“Under the law no election shall be called in question except by an election petition filed by a candidate for that election,” Justice Shahid Karim maintains in a judgment passed on a petition by former MPA Mian Tariq Mehmood.

The ECP had on March 13, 2019 disqualified Mehmood from PP-113, Gujrat for submitting false statements of assets and liabilities with his nomination papers of 2013 general elections. The ECP passed its decision on a reference filed by one Mian Muhammad Akhtar Hayat and invoked the provisions of article 62(1) (f) and article 63 of the Constitution to disqualify the petitioner.

Mehmood had challenged his disqualification before the LHC.

LHC rules ECP can adjudicate on reference received from NA speaker or Senate chairman

In his verdict, Justice Karim has observed that the only power which may be attracted under the circumstances is couched in subsection (4) of section 137 of the Election Act 2017 which provides that if a member submits a false statement of assets and liabilities, he/she may within 120 days from the date of submission of the statement be proceeded against for committing the offence of corrupt practice.

The judge notes that the Constitution and the law have circumscribed the powers of the ECP as well as the courts to adjudicate the election disputes.

It cannot be left to the whimsical discretion of the ECP to do so on an application filed by a private person which will not only impinge upon the rights of the members of the parliament but also will have the unpalatable effect of stifling the democratic process.

The judge says the ECP in the impugned order invoked clause (3) of Article 218 of the Constitution to make a declaration that the petitioner was disqualified from being a member of the assembly.

However, the judge holds, the clause (3) merely casts a duty on the ECP to organise and conduct elections and to make arrangements to ensure that the elections are conducted justly and fairly and in accordance with law.

“By no stretch of imagination it has empowered ECP to entertain a reference such as one in the present case and to embark upon an inquiry to disqualify a member of the Assembly or the Senate,” the judge adds.

The judge says it is a fallacy on the part of the ECP to have relied upon the Articles 62 and 63 as conferring power on it to make a declaration of the kind which has been done through the impugned order.

The judge maintains that the only time the ECP can proceed to adjudicate upon such a controversy is when a reference is received from either the speaker or the chairman of the Senate.

“Apart from this ECP is not vested with any power to broach the subject of disqualification on any reference filed by a private person which exercise will be ultra vires of the Constitution as well as the Act, 2017,” he holds.

Justice Karim notes that the ECP chose to exercise its jurisdiction over the subject matter while none existed. He rules that the essence of any legal system lies in the limitations placed by it upon the exercise of power; no grant of power by Parliament can be totally unlimited.

Setting aside the impugned decision, the judge remarks, “ECP’s action is a classic case of want of jurisdiction having been taken beyond the sphere allotted to it by law. It is regarded as usurpation of power unwarranted by law.”

Published in Dawn, February 24th, 2023