By Justice Katju
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 main allegation against Imran Khan was that he had received some gifts as Prime Minister which he had sold, and not disclosed this in the appropriate form.
Section 137(4) of the Election Act of Pakistan 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 242 states that an election petition must be filed within 45 days of the declaration of the result in the Official Gazette.
Section 173 states that if a person is found guilty by the Election Tribunal of a corrupt practice his result becomes void.
Thus, there is a complete method is given in the 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.
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 the Election Commission can do so in regard to an alleged corrupt practice only after a verdict finding a corrupt practice is given by the Election Tribunal. There is no such verdict of the Election Tribunal against Imran Khan. Hence the judgment of the Election Commission is totally misconceived and incorrect.
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The writer is former judge of Indian Supreme Court
Nothing could be done