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PHC stays ECP’s action on plea for Gandapur’s disqualification

6 min read

PESHAWAR: The Peshawar High Court on Wednesday issued a stay order stopping the Election Commission of Pakistan from acting on a petition for the disqualification of Khyber Pakhtunkhwa Chief Minister Ali Amin Gandapur.

A bench consisting of Justice Ijaz Anwar and Justice Wiqar Ahmad also suspended an ECP notice issued to Mr Gandapur for appearing before it on the matter on March 26.

It sought the ECP’s response to a petition of the chief minister against proceedings on a petition of his rival poll candidate, Mohammad Kafeel Ahmad.

The respondents in the petition are the ECP through the chief election commissioner, KP’s provincial election commissioner, and the regional election commissioner and district election commissioner of Dera Ismail Khan.

The petitioner requested that the high court declare that the ECP has no jurisdiction to hear the case. It also insisted that the petition filed by Mr Kafeel with the ECP was not maintainable.

A two-member ECP bench heard the petition of Mr Kafeel on March 12 and issued a notice to Mr Gandapur for March 26, observing that the preliminary arguments of the petitioner’s counsel needed “consideration on merit.”

In the petition, Mr Kafeel of the Jamiat Ulema-i-Islam-Fazl claimed that Mr Gandapur had made a misstatement regarding certain of his properties before the returning officer, and thus he was not sadiq (truthful) and amen (righteous).

Advocates Syed Sikandar Hayat Shah and Alam Khan Adenzai appeared for Mr Gandapur and contended that the petitioner was declared a returned candidate from PK-113 Dera Ismail Khan in the Feb 8 general elections, and a gazette notification was also issued by the ECP in this regard.

They said Kafeel, after losing polls, approached the ECP to seek the disqualification of Mr Gandapur under the Constitution’s Articles 218(3) and 62(1)(F) and different provisions of the Elections Act, 2017.

The counsel contended that after the Feb 8 general elections were over and the gazette notification of the successful candidates was issued, the ECP couldn’t deal with the election-related matters, so the petition of the respondent was “incompetent and not maintainable.”

They argued that as Mr Gandapur had been elected chief minister, the ECP had overstepped its powers by entertaining the petition.

The lawyers said after the notification of election tribunals, the ECP couldn’t hear the matter.

They added that Mr Kafeel didn’t raise any objections before the relevant returning officer during the scrutiny of nomination papers and that the issue couldn’t be agitated by him belatedly.

Justice Ijaz Anwar observed that after the latest Supreme Court judgement regarding Article 62(1)(F), no institution had the authority to declare any person sadiq and ameen and disqualify a person on that ground.

The petitioner has pointed out that under Section 232(2) of the Elections Act, if a person had been declared by a court to have violated Article 62(1)(F) of the Constitution, such person would be disqualified from contesting elections for a period not exceeding five years.

He added that in his case, admittedly, there was no declaration by any court of law against the petitioner as to violation of Article 62(1)(F) of the Constitution; hence, provisions of Section 232 of the Elections Act were not attracted.

The petitioner said no law provided for the procedure, process, and identification of the court of law for making the declaration mentioned in Article 62(1)(F) of the Constitution.

He also wondered whether the ECP could determine and decide about the qualification and disqualification of parliament and assembly members, especially in cases in which it had already issued a gazette notification of the successful election candidates.