No reason to rejoice

The re-polling in NA-125 ordered by an election tribunal is being projected as vindication of the PTI’s claim of massive rigging in the 2013 general elections. Imran Khan lost no time in taking a swipe at the government immediately after the verdict was announced and reiterated his prophecy that 2015 is election year.
Whether 2015 will be the year of elections or not will be known by the end of this month when the judicial commission makes public its findings but one thing is certain: there is no reason for the PTI to rejoice the verdict as far as systematic rigging in the elections is concerned. According to the data compiled by the ECP on petitions filed by contesting candidates for NA seats only three petitions of the PTI and two each of the PPP and PML-N have been accepted. The PTI and the PML-N have lost 21 petitions each for the NA seats.
Out of 58 petitions filed by the PTI for NA and PA seats, 43 have been dismissed by the tribunals. As is evident the bulk of petitions filed by the major parties, including the PTI, have not been accepted.
Even the verdict of re-polling in NA-125 does not in any way point towards any planned and systematic rigging. Rather it negates this notion out rightly. The judge of the tribunal in his detailed decision has said “No evidence though is available on record that the returned candidate or any other candidate was responsible for the missing record or even for invalid statements of count. We also have no evidence on record about any conspiracy or collusion or mala fides on the art of the DRO, RO, the polling personnel and the returned candidate. No proof of illegal gratification or undue influence is received against any member of the polling personnel, the RO or the DRO. But what is apparent, it reflects manifestly clear that serious lapses and negligence was evident at every stage of conduct of elections”.
It is universal practice that decisions are made strictly in conformity with the issues raised by

the petitioners. In the case under reference the petitioner in his petition had asked the tribunal to declare the election of the returned candidate void and declare him as returned candidate from NA-125 or order re-polling .The pivot of the petition made before the tribunal was that the election was stolen as a result of conspiracy and collusion between the returned candidate and those who conducted the election.
The tribunal, therefore, had to establish whether the claim made by the petitioner regarding conspiracy was true or not. The judge has clearly said that there was no evidence of conspiracy or collusion among the returned candidate and those responsible for conducting the elections. That should have been enough to dismiss the petition. Instead the learned judge has ordered re-polling. The judge has made the decision in terms of section 70 of the ROPA which says “The tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election”.
The judge has ordered re-polling on the drawn conclusion that the election was materially affected. The issue was not whether the election was materially affected or otherwise. The issue was whether the election was stolen through conspiracy and collusion among the respondents mentioned in the petition or not.
The judgement has mostly relied on irregularities committed by the DRO, RO, presiding officers and polling staff which – to the judgement – constituted breach of different provision of the ROPA. For instance according to the judgement the RO breached section 9(2) of ROPA by not preparing the lists of polling personnel 15 days before the polling and getting it approved by the DRO as well as by changing the Presiding officers on the request of the petitioner 3-4 days before the elections. It is interesting to note that it was the petitioner himself who influenced the RO to change the presiding officers and thus was equally responsible for this glaring irregularity and violation of section 9(2) of ROPA. That should have been sufficient reason for dismissal of his petition.
The judgement says that the RO compiled the results on the basis of form XIV provided by the presiding officers without signatures and thumb impressions in contravention of section 38(9) of ROPA. He also violated section 39(6) of the Act by not recounting the ballot papers on the request of the candidates as well as failing to scrutinise all ballot papers excluded from the count. The judgement also talks of some missing record and attributes the phenomenon to the inability of the ECP to take the responsibility for preserving this record appropriately and instead leaving it to be handled by the treasury offices concerned, who are under no legal obligation to do so.
There is also mention of thumb impressions not matching or being not verifiable by Nadra, which the judgement concedes may be due to lack of proper training by the polling staff about how to obtain the impressions and probably the ink used being the reason for that.
What all this means is that the irregularities and breach of provisions of ROPA were not intentional. It may be relevant to mention that the Commonwealth Observers group whose observations have also been referred to by the judge in his judgement had mentioned some irregularities and breach of certain electoral procedures but they declared the overall elections as transparent and free or rigging. In view of the foregoing facts the decision by the PML-N to appeal against the verdict of the tribunal is beyond reproach.
The writer is a freelance contributor.
Email: ashpak10@gmail.com