PTI reply to notice: SC urged to declare Sec 10 of Election Act ultra vires of Constitution

ISLAMABAD: The Supreme Court has been asked to declare Section 10 of the Election Act, 2017 ultra-vires of the Constitution and restrained the Election Commission of Pakistan (ECP) from taking action or proceeding in the matter during the pendency of the present issue.

Pakistan Tehreek-e-Insaf (PTI) Secretary General Asad Umar on Monday filed his reply pursuant to the apex court’s notice.

A three-member bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ayesha Malik and Justice Athar Minallah, on November 15 had issued notices to PTI Chairman Imran Khan, Asad Umar, and Fawad Chaudhry in the ECP’s petitions for consolidation and transfer of cases to one high court.

The bench will again take up the matter Tuesday (Dec 6).

The ECP had issued contempt notices to the PTI leaders. However, instead of defending, they challenged the notices before different high courts – the Lahore High Court, LHC Rawalpindi bench, Sindh High Court, and the Islamabad High Court on the grounds that Section 10 of the Elections Act, 2017 was against the constitution.

Asad Umar has further prayed before the apex court to declare that the impugned notice of 19.08.2022 is in excess of the jurisdiction and authority of the Comm-ission, therefore, it be so declared as the same cannot be acted in excess of jurisdiction and authority. He also asked the Court to suspend the ECP’s notice during the pendency of the case.

He submitted that the impugned notice is contrary to and in violation of the law. Article 204 of the Constitution clearly refers to a Court to mean the Supreme Court or the High Court. He stated that Article 204(3) categorically refers to the exercise of the power conferred on a Court. Thus, the Commission not being a Court cannot exercise such power under Article 204.

The Election Commission has not been declared or established as a Court; however, Section 10 confers the power of Court, without it being established as a court and Section 10 is not a declaration of the Commission being a Court of Law.

In the cases of PLD 2018 SC 189 and 2015 SCMR 1303, the Supreme Court has categorically held that the Election Commission is not a Court of Law. Article 175(2) of the constitution categorically states that no court shall have jurisdiction of Court unless it is conferred on it by Constitution or by law. No conferment of the jurisdiction as a High Court has been conferred on the Election Commission.

He stated section 10 of the Election Act, 2017 is contrary to the separation of powers as enshrined in the Constitution and liable to be struck down.

Copyright Business Recorder, 2022