NA-75 by-election: ECP made a mistake by not requisitioning army’s help, says SC

ISLAMABAD: The Supreme Court (SC) Tuesday rejected Pakistan Tehreek-e-Insaf (PTI) candidate Ali Asjad Malhi’s plea to suspend the Election Commission of Pakistan (ECP) short order about re-polling in the National Assembly constituency NA-75 (Daska) in connection with by-elections. “We cannot decide the matter without listening to the other side,” Justice Umer Ata Bandial told the petitioner.

The apex court hinted at reserving on Friday, March 19, the judgment on re-holding of by-elections in the NA-75 Daska. A three-member SC bench, headed by Justice Umer Ata Bandial, heard the PTI candidate’s petition, challenging the ECP order of Feb 25, 2021, declaring the by-election at NA-75 void and ordering re-polling.

Justice Bandial said they might reserve the judgment on Friday (March 19), directing counsel for Nausheen Iftikhar, the respondent and Pakistan Muslim League-N (PML-N) candidate in Daska by-polls, to ensure his appearance in the court.

At the start of hearing, the court was informed that Salman Akram Raja, counsel for Nausheen Iftikhar, was suffering from COVID-19. Justice Bandial asked Shahzad Shaukat, counsel for the petitioner, to commence his arguments. The counsel read out the ECP’s impugned judgment dated February 25, 2021 for which detailed reasons were released on March 8, 2021.

The counsel, however, pleaded for suspension of the ECP short order about re-polling in the entire NA-75 constituency. Justice Bandial observed the court respected the constitutional body, the ECP. “Let us first study the report, submitted by the Election Commission of Pakistan,” Justice Bandial told the counsel.

The court, in its order, noted that the question before it was the standard of proof, the quantum of evidence and the degree of violations of law that were necessary for a re-poll order in the entire constituency.

The court noted that Section 9 of the Election Act 217 operate in a very limited time period and, therefore, the standard set for the election tribunal could not be imported without adjustment.

“We would like to examine whether the urgency of the situation and the constitutional mandate justify the Election Commission of Pakistan to act in a manner that is decisive on the touchstone of criteria, followed by administrative/ executive authorities rather than judicial fora,” says the order.

The court held that the material available was extensive but the counsel for the parties had not analysed it adequately to explain how pervasive the allegations made took place. The court noted that it would appreciate if a map of the constituency highlighting the types of wrongs committed at specific polling stations was presented along with a chart, which explained the indicators on the map.

The court observed that the respondent/ contesting candidate complained of irregularities at 20 polling stations, the returning officer after his preliminary inquiry concluded that allegations were justified with respect to the proceedings and result of 14 polling stations.

The court noted down in its order that two persons were killed at one polling station and roughly 40 polling stations were affected by firing into the air.

It held that presiding officers of 20 polling stations went missing and did not hand over the results to the returning officers on time, but more importantly from experience of the findings of the Chief Election Commission of Pakistan, it is observed in the impugned judgment neither the Inspector General of Police (IGP) nor the Punjab chief secretary responded to his request. It was only the federal government that responded by providing protection through rangers for the polling staff, polling stations and polling material.

The court noted that underlying tenor of the impugned judgment was that the police were silent spectator and did not intervene to check the acts of intimidation, harassment and also violence that took place outside the polling stations.

The court noted that the ECP has a specific mandate under Article 218(3) of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 9 of the Elections Act, 2017 to ensure honest, just, fair and lawful conduct of elections at which coercion, intimidation and pressures must be prevented.

Justice Bandial directed ECP to inform the court about the volume of expenditure being made by the Commission while conducting an election on a National Assembly seat. “Please inform us about this. After all, we are a poor country,” Justice Bandial asked ECP secretary.

Justice Bandial also asked counsel for the petitioner to assist the court on Section 9 of the Election Act 2017 briefly and adjourned the matter until March 19. The counsel for the petitioner submitted that there were about 360 polling stations with roughly more than 400,000 voters in NA-75 constituency. He said that at the conclusion of polling, results of some 340 polling stations were delivered in farm 49 to the returning officers (ROs) in normal procedure.

At 4:20pm, the respondent Nausheen Iftikhar complained to the ECP that they had not received the results from 23 polling stations. “Did you know about the said results,” Justice Bandial asked the counsel, to which he replied that they were told by the returning officer that the results of 14 constituencies were missing.

The lady was winning on 240 polling stations,” the PTI counsel submitted. “It’s good,” Justice Bandial asked the counsel and further inquired as to whether these polling stations were scattered. The counsel first replied that some 2 or 3 polling stations were nearer to each other but then said “yes all polling stations were scattered”.

He said that polling was stopped at polling station Nos 137 and 138 due to violence outside these polling stations, but later on resumed, adding that two persons -- one each from the PTI and the PML-N -- died due to firing into the air, and the ECP had issued notices to the PTI and the PML-N and all other contestants.

The PTI lawyer, however, submitted that the ECP order for re-poling in the entire constituency on the basis of violence, adding that the district returning officer appeared before the ECP and informed that nothing that sort of happened on 23 polling stations about which the respondent was claiming.

“Is there any affidavit available in this regard,” Justice Mazahir Ali Akbar Naqvi, another member of the bench, asked the counsel. Justice Bandial observed that according to the ECP, the law-enforcing agencies did not intervene.

Justice Qazi Muhammad Amin observed that it was the responsibility of the local administration to ensure law and order situation, providing conducive environment at polling stations, enabling the people to exercise their right to vote.

“The administration should have taken effective measures to stop violence at polling stations,” Justice Amin added. The counsel for the petitioner submitted that the DRO did not blame civil administration, but despite of that the ECP ordered re-election in the entire constituency.

“It is my objection that the Election Commission has no authority to issue a short order, ordering re-poll at the entire constituency,” Shahzad Shaukat contended adding that only the Supreme Court and High Court had the prerogative to issue short orders.

“But I don’t know as to what was the logic behind ordering re-polling in the entire constituency by the ECP,” the PTI candidate lawyer submitted. Justice Qazi Amin, while endorsing the stance of the counsel, observed that as the Chief Election Commissioner is not a judge, he could not issue short order, but the Supreme Court and High Court.

“You are talking about short orders of superior courts, but it has no backing of the law but just a practice,” Justice Mazahir Ali Akbar Naqvi remarked. Justice Bandial asked the counsel as to whether after passing short order on February 25, ordering re-poll, the ECP conducted any inquiry into the matter? No, the counsel replied.

“What kind of inquiry is required under such circumstances,” Justice Bandial questioned, adding that each election cost crores of rupees. “Secretary Sahib! please inform us on the next date of hearing as to how much expenditure incur by the ECP on an election,” Justice Bandial asked.

During the hearing, Mian Abdur Rauf, counsel for the ECP, told the court that the Commission had changed the date for re-election as the interior ministry had warned that the situation remained tense in Daska.

Justice Mazahir Naqvi asked the ECP lawyer if videos on USB of the violence could be presented before the body. “How it could be determined that the videos were authentic, and from that particular day?”

Whether the Election Commission conclude the case on the basis of WhatsApp message,” Justice Mazahir asked, adding that this culture must come to an end. The counsel submitted that when a candidate is losing an election, he resorts to creating disturbance for achieving the desired results.

Justice Bandial recalled that his wife and daughter went for casting their votes during 2018 polls and they returned with smiling faces, praising that everything was held in peaceful manner. Justice Bandial observed that that was because the Pakistan Army was deployed during the elections to maintain law and order. Justice Bandial noted that the authorities made a mistake by not deploying army in Daska polls, but relied on police for maintaining order.

“Did the IGP file a report to the ECP,” Justice Bandial asked counsel for the PTI, who replied in negative. This is quite enough and did the ECP issue contempt notice to the IGP,” Justice Bandial asked to which Mian Abdur Rauf, the ECP lawyer, told the court that the IG had not yet submitted a report.

The ECP lawyer submitted that as per a report from the interior secretary, the polls in Daska were not peaceful, adding that terror was spread in the constituency through firing and violence.

“If this was the situation, then why did you go for polls,” Justice Naqvi asked the ECP lawyer, adding as to what action was taken by the ECP in that regard. “We must bring this culture to an end now and for how long democracy will remain under the shadow of guns,” Justice Qazi Muhammad Amin Ahmed remarked.

The PTI lawyer submitted that the respondent Nausheen Iftikhar had accepted the results of 340 polling stations, but why she was demanding re-polling now. He said that 36 polling stations on which the respondent Nausheen Iftikhar was demanding re-election, were won by her. But she again demanded elections on those polling stations.

“We just came here if there is any evidence on any polling station of irregularities, elections should be held on that polling stations, but it should not be held in the entire constituency,” the PTI lawyer submitted.

Meanwhile, the court adjourned the hearing till Friday, March 19. The Commission had declared the poll held at the constituency as void and ordered fresh poll in the entire constituency on March 18, 2021 and later re-scheduled it for April 10.