Imran Khan challenges five-year disqualification in LHC

07 December, 2023

On August 8, the ECP had disqualified Imran for five years following his conviction in the Toshakhana case for concealing details of the gifts he received as the premier during his tenure.

An Islamabad trial court had found him guilty of “corrupt practices by hiding the benefits he accrued from the national exchequer wilfully and intentionally”.

“He cheated while providing information of gifts he obtained from Toshakhana which later proved to be false and inaccurate. His dishonesty has been established beyond doubt,” the court order had said.

In its notification, the ECP had cited the trial court’s order and declared Imran disqualified under Article 63(1h) of the Constitution, read with Section 232 of the Elections Act, 2017.

The article deals with disqualifications for members of parliament. Clause 1h states that a legislator can be disqualified if they are convicted of “any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release”.

“Therefore, Mr Imran Ahmed Khan Niazi is disqualified for a period of five years and is also de-notified as a returned candidate from constituency NA-45 Kurram-I,” the notification had said.

It should be noted that on August 29, the Islamabad High Court (IHC) had suspended Imran’s sentence in the case.

The fresh petition, was filed by PTI Chairman Gohar Ali Khan and Ali Zafar on Imran’s behalf.

The ECP was named as a respondent in the petition. It urged the court to declare the electoral watchdog’s notification disqualifying Imran “unlawful, illegal and unconstitutional”.

The petition also urged the LHC to suspend the ECP’s notification till the final disposal of the case. “In the meanwhile, this court may kindly be pleased to suspend the operation of impugned notification dated August 8, 2023, till final disposal of the titled petition,” it said.

The petition also added that the court may grant “any other relief as deemed just and appropriate” in favour of the petitioner.

The plea said the ECP took illegal action in haste to disqualify Imran from contesting the next general elections, adding that the allegations levelled against the petitioner were baseless.

It said the ECP issued the disqualification notification without issuing any notice to the petitioner or without hearing the petitioner’s side, terming it a violation of justice.

The plea also cited recent amendments made to the Elections Act, 2017, saying that ECP could not “decide the question of qualification or disqualification of any person at all”.

It added that the ECP had no jurisdiction to “pre-emptively issue the impugned notification” disqualifying Imran for a period of five years automatically upon his conviction.

“It only demonstrates the undue and unlawful haste and zeal of the respondent (ECP) to eliminate the petitioner (Imran) and his political party from the forthcoming general elections,” the plea read.

It highlighted that the allegations against the petitioner did not concern the misappropriation of any public funds and there was “no moral turpitude involved in the said offence” that made the ECP issue the impugned notification.

The plea also highlighted that the election date was announced on the orders of the Supreme Court and that the nomination papers of candidates had to be filed after the ECP announced the election schedule.

“By the illegal impugned notification, the fundamental rights of the petitioner to contest elections are being denied,” the plea read. “The petitioner has the right to contest the general elections as well as the intra-party elections,” it added.

It said the petitioner had always contested elections from Mianwali and Lahore which fell within the jurisdiction of the LHC. It urged the court to declare the ECP’s notification disqualifying Imran as null and void.

It should be noted that the ECP had also disqualified Imran in the Toshakhana reference in October 2022 under Article 63(1)(p) for making “false statements and incorrect declaration”.

The reference was filed against Imran by the former Pakistan Democratic Movement government, for “not sharing details” of Toshakhana gifts and proceeds from their alleged sale.

However, the full text of the 36-page order by the ECP was silent on life-time or five-year disqualification for Imran. Subsequently, the then-IHC chief justice had observed that the law did not bar the former premier from contesting polls and the ECP had disqualified him only on his Mianwali seat for “concealing” details of Toshakhana gifts.

On Monday, the IHC had rejected Imran’s application to withdraw his appeal against disqualification in the Toshakhana reference in order to enable him to pursue the matter in the LHC.