In 2-1 verdict: SC declares 3 PMLN candidates successful

ISLAMABAD: The Supreme Court Monday observed that the Election Commission of Pakistan (ECP) was a constitutional body and its chairman and members were entitled to respect but unfortunately at places, some high court judges lost sight of this and passed derisive remarks.

A three-member bench of the apex court, headed by Chief Justice of Pakistan Justice Qazi Faez Isa, announced the reserved verdict on the appeals of PMLN candidates against the judgment of Lahore High Court and Lahore High Court, Bahawalpur bench declaring as null and void the order of vote recount by the Election Commission of Pakistan in three National Assembly constituencies and one provincial assembly whereby the PMLN candidates were declared successful.

“Every constitutional body and constitutional office holder, in fact everyone, is deserving of courtesy and respect and institutions gain in stature when they act respectfully”, the judgment concluded.

The court by a majority 2-1 allowed the petitions of PMLN candidates and set aside the LHC judgment. Justice Aqeel Abbasi, however, dismissed the instant appeals and dissented with the majority decision after holding that the impugned judgments/orders passed by the Lahore High Court in the aforesaid writ petitions did not suffer any factual error or legal infirmity; therefore, did not require any interference by this court under Article 185(3) of the Constitution.

“We have considered these cases from a number of different perspectives, and from all of them, the impugned judgments of the High Court cannot be sustained,” says the 47-page majority judgment authored by Chief Justice Qazi Faez Isa.

The court converted the petitions into appeals, set aside the impugned judgments and dismissed the writ petitions filed with the High Court, but with no order as to costs. “The High Court’s jurisdiction under Article 199 of the Constitution can only be invoked if a petitioner is an ‘aggrieved’ person,” said the judgment adding that it was not understandable how anyone could be stated to be aggrieved if the ballot papers were recounted.

The court held that the grievance against the administrative-ministerial act of recount of ballot papers was also not envisaged in Article 199 adding that if a Returning Officer did not do an honest recount or did not do the recount in accordance with the law, then the affected party had the available remedies.

“Depending upon the particular facts of the case, this could be by approaching the Commission or filing an election petition with the Election Tribunal, constituted under Article 225 of the Constitution,” the court held adding that thereafter, the jurisdiction of this court could also be invoked.

The majority judgment ruled that law was the Elections Act and its Section 95(5) stipulated that the returning officer shall recount the ballot papers provided an application seeking recount was submitted and the difference in the margin of victory between the first two candidates was less than five percent or the stipulated number of votes.

“In these cases, the difference in the margin of victory was well within the stipulated percentile/number,” the court held. It is pertinent to mention that Abdul Rehman Khan Kanju, Azhar Qayyum Nehra, Zulfiqar Ali Bhinder and Rana Muhammad Arshad of PMLN had challenged the judgments delivered by the Lahore High Court and Lahore High Court, Bahawalpur bench.

The majority judgment after accepting their appeals set aside the LHC judgment and restored the order of Election Commission that had declared the PMLN candidates successful after the vote recount.

Three PTI affiliated independent candidates, Rana Faraz Noon from NA-154, Rana Bilal Ejaz from NA-81 Gujranwala, and Ehsanullah Wark from NA-79 Gujranwala, were declared successful in the general elections held on February 8, 2024.

From PMLN side, Kanju was contesting election on NA-54, Lodhran, Azhar Qayyum Nara N- 81, Gujranwala and Zulfiqar Ali Bhinder from NA-79 Gujranwala.

Similarly, on the Punjab Assembly seat PP-133, Nankana Sahib, independent candidate affiliated with PTI Muhammad Atif won the seat defeating PMLN candidate Rana Muhammad Arshad.

However, the PMLN candidates approached the Election Commission for recount. The Election Commission ordered recount and later on declared the PMLN candidates as winners. Later, the independent candidates challenged the ECP’s decision in the LHC which set aside the ECP order in April that had declared the PMLN candidates as winners.

The PMLN candidates then filed appeals with the Supreme Court, challenging the LHC order. The court noted that these Civil Petitions for Leave to Appeal (‘CPLAs’ or ‘Cases’) arose out of the general elections held throughout Pakistan on 8 February 2024.

Four of these cases are in respect of three different National Assembly constituencies (CPLAs No. 1573, 1673, 1729 and 1767 of 2024; the first two are in respect of the same constituency) and one is in respect of a Provincial Assembly constituency (CPLA No. 2433 of 2024). 2. Section 95(5) of the Elections Act, 2017 (‘the Elections Act’) stipulates that when the margin of victory between the returned candidate and the runner up candidate is less than five percent of the total votes polled in the constituency or eight thousand votes in the case of a National Assembly constituency and four thousand in the case of a Provincial Assembly constituency then, before the commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request to challenge in writing is made to that effect by a contesting candidate or his election agent.

“It is an admitted position that the difference in the margin of victory between the returned candidates and the runner up candidates in these Cases was less than the stipulated percentile/number,” says the judgment adding that it is also admitted that in respect of three of the constituencies, applications to recount the ballot papers were submitted on 9 February 2024 and in respect of one on 10 February 2024.

“However, the contesting respondents (the petitioners before the High Court) contend that the consolidation proceedings had already commenced, or had concluded, when the applications seeking recount of ballot papers were submitted.

The judgment noted that the petitioners before the High Court (who are the contesting respondents herein) had invoked the constitutional jurisdiction of the High Court under Article 199 of the Constitution (‘the Constitution’). They had challenged the recounting of ballot papers which, pursuant to the petitioners’ applications seeking recount, had been allowed. They had also challenged the notifications issued by the Election Commission of Pakistan (‘the Commission’) pursuant to the recount.

The learned judges of the High Court allowed the writ petitions and held that the ballot papers could not be recounted,” says the judgment adding that both sides comprehensively argued on jurisdiction.

Similarly, the court noted that the learned counsel representing the petitioners submitted that the writ petitions, filed under Article 199 of the Constitution, were not maintainable because the contesting respondents, who had filed them had ‘other adequate remedy’, which was to file election petitions with the election tribunals.

“Whereas the learned counsel representing the contesting respondents submitted that since they had won the elections, it was for the petitioners to file election petitions with the Election Tribunals, which had been constituted. Both sides relied upon Article 225 of the Constitution in support of their respective contentions”, says the judgment.

The court while attending the matter of jurisdiction and to examine the applicable constitutional and legal provisions referred to the precedents.

“Some of the said precedents were decided under the old law, which was Representation of the People Act, 1976 (‘ROPA’). However, the provisions of the repealed ROPA, with regard to the matters herein, filing of election petitions and Election Tribunals, unless otherwise highlighted, were in pari materia with the Elections Act,” says the judgment.

The court ruled that the legislature, however, had made a significant change (on 5 August 2023) to Section 95(5) of the Elections Act, which was to take away the discretion vesting in the Returning Officer when considering an application seeking recount of the ballot papers adding that this was done by removing the following words therefrom – ‘the Returning Officer considers such request as not unreasonable’ – appearing at the end of section 95(5). Excluding the proviso (which remains unchanged) section 95(5) both before and after the amendment is reproduced hereunder:

Before Amendment

95(5). Before commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made by a contesting candidate or his election agent and the margin of victory is less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or the Returning Officer considers such request as not unreasonable. [emphasis added]

After the amendment

95(5). Before commencement of the proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made to that effect by a contesting candidate or his election agent and – (a) the margin of victory between returned and runner up candidates is less than five percent of the total votes polled in the constituency or eight thousand votes in case of National Assembly constituency and four thousand votes in case of a Provincial Assembly constituency, as the case may be, whichever is less; or (b) the number of votes excluded from the count by the Presiding Officer are equal to or more than the margin of victory.

“Having set out the legal and constitutional provisions and the precedents of this Court, we now proceed to examine these Cases. However, before doing so it needs stating that the following factual matters were raised before us: (1) Whether the applications to recount were submitted before the consolidation of results, (2) whether the recount was prevented and (3) whether a ‘notice in writing of the day, time and place fixed for the consolidation of the result’ (as required by subsection (1) of section 95) was given by the Returning Officer”, says the judgment

The judgment noted that the contesting parties controvert each other on these matters adding that in respect of disputed facts as a general rule the High Courts do not exercise writ jurisdiction under Article 199 of the Constitution.

The judgment further noted that the Returning Officer of one constituency of the National Assembly noted on the application on 10 February 2024 that, the application regarding recount the votes is not maintainable section 95 ss 5/6 of the Elections Act 2017, but without stating the reason why it was not maintainable.

“The petitioner challenged the Returning Officer’s order by filing a petition on 11 February 2024 before the Commission and the Commission sought a report from the Returning Officer, who in his report dated 16 February 2024, stated that ‘the application for recount was received at my office before consolidation,’ but the Returning Officer could not recount the ballot papers ‘because of law and order situation created by the returned candidate”, says the judgment.

In respect of another National Assembly constituency, the judgment noted that the Returning Officer’s order dated 10 February 2024 stated that he had ‘perused his record and evidences put forth by the applicant. However, the applicant has failed to substantiate his claim.’ In the Returning Officer’s report dated 2 March 2024, which was sought by the Commission, pursuant to its order dated 22 February 2024, the Returning Officer acknowledged receipt of the application to recount on 9 February 2024, but stated he could not undertake a recount because ‘a huge number of political workers gathered outside the office of the undersigned and climbed the walls of the premises.

“They raised slogans, and used abusive language. In this situation, the law and order situation worsened badly. Therefore, he ‘was unable to entertain the said application and dismissed the application’ which had sought a recount of the ballot papers”, says the judgment.

The judgment noted that the Returning Officer of the third National Assembly constituency acknowledged the receipt by him of the application seeking recount on 10 February 2024, but through his order also dated 10 February 2024 dismissed it by stating that he had ‘perused his record and evidences put forth by the applicant.

However, the applicant has failed to substantiate his claim and the petitioner challenged the Returning Officer’s order before the Commission on 14 February 2024. The Returning Officer in his report dated 2 March 2024 submitted to the Commission, pursuant to its order dated 22 February 2024, stated that because of the ‘huge number of political workers of various parties & candidates gathered outside the office of the undersigned and Law & Order situation’ he could not undertake the recounting.

In respect of the Provincial Assembly constituency, the court noted that application dated 9 February 2024 had sought the recount of the ballot papers and had also pointed out certain irregularities, including that over 3,300 votes were declared invalid.

“On the application the Returning Officer wrote on 9 February 2024: ‘No complaint from candidate or any of his election agents regarding such ambiguities during the poll day. Moreover, the candidate has not mentioned any specific polling stations regarding such irregularity. Therefore, the application in hand is hereby rejected.

The court noted that the petitioner submitted an application to the Commission against the order of the Returning Officer and sought recount of the ballot papers and notices dated 12 February 2024 were issued by the Commission to which the Returning Officer responded on 13 February 2024 stating that he had rejected the petitioner’s application because ‘the difference between the returned candidate and the applicant is 3557.’

The court held that the Returning Officers cannot surrender their powers to mob rule nor can forego their statutory duty to recount adding that if, this is accepted, it would create a very dangerous precedent and render the law regarding recounting meaningless by those resorting to lawlessness.