ISLAMABAD: As the Election Commission of Pakistan (ECP) meets today (Thursday) on the NA-75 Sialkot IV by-election results controversy, the Elections Act 2017 empowers it to proceed against the highest state functionaries for any action that adversely affects the election process.

The returning officer (RO) observed that “prima facie, it looked as if the result of NA-75 had been tampered with by the presiding officers” and proposed re-polling in 14 controversial polling stations.

The Elections Act 2017 empowers the ECP to proceed against the highups that adversely affected the election process.

Sub section 3 of section 55 of the Elections Act empowers the commission to “suspend or withdraw any election official, a public servant or any other person in the service of Pakistan” for their negligence in conducting free and fair elections.

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Article 260 of the Constitution defines service of Pakistan as “any service, post or office in connection with the affairs of the Federation or of a Province, and includes an all-Pakistan service, service in the Armed Forces.”

According to Pildat President Ahmed Bilal Mehboob, the ECP under the said section could suspend even the chief secretary or the inspector general in connection with ‘disappearance’ of the presiding officers since these authorities were directly responsible for holding independent elections.

He said it would set a precedent for future elections.

Section 172 of the Elections Act explains the “tampering with papers”, it says a person is guilty of tampering with papers, if he — (a) intentionally defaces or destroys any nomination paper, ballot paper or official mark on a ballot paper; or (b) intentionally takes out of the polling station any ballot paper or puts into any ballot box any ballot paper other than the ballot paper he is authorised by law to put in.

It said that “An election official on duty in connection with the election who is guilty of the offence under sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs100,000 or with both.

Moreover, Section 184 of the Act explains “violation of official duty in connection with election”.

It said that “a person appointed to perform any function in connection with an election is guilty of violation of official duty, if he wilfully or negligently… tampers with papers as mentioned in section 172… fails to discharge any duty entrusted to him under this Act or Rules or any other law.”

The law proposed: “An election official or any other person on duty in connection with an election who is guilty of an offence under section 184… shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs100,000 or with both.”

According to advocate Supreme Court Kashif Ali Malik, the ECP cannot only suspend any officer but can also conduct an inquiry and the Elections Act 2017 has even empowered the commission to dismiss senior public servants over their negligent behaviour.

As per the Elections Act, “Presiding Officer shall count the votes immediately after the close of the poll in the presence of the contesting candidates, election agents, polling agents and authorised observers as may be present [and] publish the result of the count and ballot paper account, signed by him and others, by affixing copies at a conspicuous place at the polling station for public inspection.”

However, instead of following the statute, the presiding officers disappeared in dense fog and re-appeared with the results which the RO termed as tampered with.

A senior ECP official on condition of anonymity said the ECP could not proceed against any official on its own.

He said under sub section 2 of section 190 of the act, the ECP or any aggrieved person may file a complaint before the sessions judge.

As per the said section, “if a complaint made by the person proves to be false, based on bad faith or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs50,000 or with both.”

Published in Dawn, February 25th, 2021