ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) has asked the Supreme Court to declare Section 10 of the Election Act, 2017 ultra-vires the Constitution and restrained Election Commission of Pakistan (ECP) from taking action or proceeding in the matter during the pendency of the present issue.
PTI Secretary General Asad Umar filed his reply in pursuant of the apex court notice. A three-member bench of the apex court 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, Secretary General Asad Umar and Fawad Chaudhry in ECP petitions for consolidation and transfer of cases to one High Court.
The bench will again take up the matter on Tuesday (today). The ECP had issued contempt notices to the PTI leaders. However, instead of defending, they challenged the notices before different high courts – 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 to the apex court to declare that the impugned notice of 19.08.2022 is in excess of jurisdiction and authority of the Commission, 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 notice during the pendency of the case.
He submitted that the impugned notice is contrary to and in violation of 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 exercise of power conferred on a Court. Thus, the Commission not being a Court cannot exercise such power under Article 204.
He added that the Election Commission has not been declared or established as a Court however Section 10 confers 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.
The PTI leader said that 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 that 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.
