Judgment of Pakistan Election Commission against Imran Khan is totally flawed
Markandey Katju 27 Oct 2022

I have carefully read the judgment of the Pakistan Election Commission against former Prime Minister Imran Khan in the Toshakhana case, and find that it suffers from a fundamental defect. Let me explain.

The allegation against Imran Khan was that as Prime Minister he had received some gifts which he sold, but did not disclose this in the relevant form.

Section 137(4) of the Pakistan Election Act, 2017 states :

“ Where a member submits the statement of assets and liabilities under this section which is found to be false in material particulars, he may within 120 days from the date of submission of the statement be proceeded against for committing the offence of corrupt practice “.

Section 139(2) states that corrupt practice is as defined in Chapter X of the Act. In Chapter X is section 167(a) which makes filing a false statement a corrupt practice.

Section 140 provides for an Election Tribunal, and section 142 states that an election petition must be filed within 45 days of the declaration of the result in the Official Gazette.

Section 173(d) relates to filing a false statement of assets.

Thus, there is a complete procedure given in the Pakistan Election Act as to how an election result can be voided for a corrupt practice (which includes filing a false declaration of assets). This can only be done by the Election Tribunal, not by the Election Commission.

Section 63(1)(p) of the Pakistan Constitution states that a member can be disqualified if he is disqualified under any law.

Section 63(2) states “ If any question arises whether a member of Parliament has become disqualified from being a member, the Speaker, unless he decides that no such question has arisen, refer the question to the Election Commission within 30 days “,

Section 63(3) states that the Election Commission shall decide the reference within 90 days.

As regards section 63 of the Pakistan Constitution, this no doubt gives the power to the Election Commission to disqualify a member of the Pakistan National Assembly, but a correct interpretation of the provision can only mean that the Election Commission can do so in regard to an alleged corrupt practice only after a verdict finding a corrupt practice has been committed is given by the Election Tribunal.

This interpretation is the only logical one, otherwise we will have to say that both the Election Tribunal and the Election Commission can decide allegations of corrupt practice. What if they give conflicting verdicts ? This would be anamolous.

There is no verdict of the Election Tribunal against Imran Khan holding him guilty of corrupt practice. Hence the judgment of the Election Commission is totally flawed, misconceived and incorrect as it is not based on any judgment of the Election Tribunal.

By Justice Katju, former judge of Indian Supreme Court and Amile Gulzar, Advocate, Lahore, Pakistan
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