LAHORE: Former Pakistan Tehreek-e-Insaf (PTI) chairman and premier Imran Khan on Saturday challenged the Election Commission of Pakistan’s (ECP) decision to conduct his contempt trial in Adiala jail.
The contempt case revolves around Imran’s alleged use of derogatory and contemptuous remarks against the Chief Election Commissioner Sikander Sultan Raja during press conferences and public gatherings.
The former prime minister requested the court to set aside the ECP’s impugned order of November 30, 2023, under which the electoral body decided to conduct his trial or proceedings in Adiala jail on account of unspecified security reasons.
The PTI chief also prayed the court to declare closed trials in prison a sheer violation of fundamental rights and urged relevant authorities to conduct his trial in an open and public court, similar to normal court proceedings.
Additionally, he sought to halt the proceedings before the Election Commission under the Election Act 2017, restraining the respondent CEC from conducting jail proceedings, issuing orders, or taking coercive measures against him.
The federal government through its secretary of Ministry of Law and Justice, ECP through its CEC, secretary ECP, director general (law) ECP, secretary Ministry of Interior, superintendent district Adiala jail, and additional inspector general (AIG) of police (operations) were made respondents.
Imran filed the petition through Barrister Sameer Khosa, who contended that the impugned order incorrectly holds that respondent CEC has jurisdiction to order a trial in secret and in prison. He added that the CEC has relied on the report furnished by superintendent Adiala jail, which states that provisions of the Code of Criminal Procedure 1898 do not apply in contempt proceedings because it is a sui generis proceeding.
“The respondent CEC has failed to appreciate that unless a specific power is granted under a statute authorising it to conduct proceedings in jail, there is no inherent power to conduct proceedings in this manner. Given that the report by the respondent, Superintendent Jail, states that the Code of Criminal Procedure 1898 does not apply to the proceedings, there is no authorization in either the Elections Act 2017 or the Contempt of Court Ordinance 2003 to conduct proceedings in jail.”
“Thus, the impugned order, in purporting to exercise a power that ECP does not have, is patently without jurisdiction.” He contended that the CEC is not a court that can exercise judicial powers; instead, it is an executive agency.
“Neither is it a court for Article 204 of the Constitution, Article 175, or the High Court as mandated by Article 203 of the Constitution.”
He further said that even if power is granted to a court under a statute, the exercise of such power cannot be extended to the CEC, which is not a court.
“The impugned order issued by CEC relies on the report submitted by Superintendent Jail, which states that since the Election Act 2017 does not specify the place of sitting or trial for contempt proceedings and because the federal government has already approved certain orders for trials to be held in jail, respondent CEC has the authority to order a trial in secret and in jail.”
The counsel added that this is a case of an administrative or executive agency assuming power for itself that is neither explicitly mentioned in the Constitution nor allowed for by the authorising legislation. Instead, the CEC has inferred that it has the power to decide the location of the trial because superintendent Adiala jail says so.
“Silence cannot be presumed as allowing respondent CEC and Superintendent Adiala jail the authority to give whatever meaning to the constitution and the Election Act as they deem fit, it mentioned. The Constitution had a legal framework. It is not a tabula rasa upon which respondent CEC and Superintendent Jail can write whatever they want to,” the petition added.
“The scheme of the constitution has been meticulously crafted to ensure that the fundamental rights of the citizens are protected against excessive interference. The reference to the conduct of other proceedings in jail is not proof of the legality or acceptability of jail trials. It shows that respondent CEC and Superintendent Adiala jail have already determined to deny the petitioner his fundamental rights and are using the cover of other proceedings to do the same.”
