ISLAMABAD: The Supreme Court on Tuesday observed that it intended to determine whether the Election Commission of Pakistan’s (ECP) Feb 25 decision to hold fresh by-election in the entire NA-75 Daska constituency was in accordance with its constitutional mandate keeping in view the urgency of the situation that prevailed on polling day.

“The question before the apex court is to determine that the standard of the proof, quantum of evidence and the degree of violation and the law and order situation necessitated re-poll in its entirety,” observed Justice Umar Ata Bandial, who was heading a three-judge SC bench also consisting of Justice Qazi Muhammad Amin Ahmed and Justice Sayyed Mazahar Ali Akbar Naqvi.

The bench took up an appeal moved by Pakistan Tehreek-i-Insaf’s Ali Asjad Malhi challenging the ECP’s decision to hold fresh by-poll in NA-75 Daska, Sialkot. Both Asjad Malhi and Pakistan Muslim League-Nawaz candidate Syed Nosheen Iftikhar were present in the courtroom.

The ECP had on Feb 25 ordered re-election in the entire NA-75 constituency on March 18 after suspicions that the results may have been falsified. The ECP decision came on an application filed by Nosheen Iftikhar. The commission later rescheduled the by-poll for April 10.

Intends to determine if ECP decision is in accordance with constitutional mandate

The apex court postponed the proceedings to March 19 because senior counsel Salman Akram Raja, representing Nosheen Iftikhar, could not appear since he had to undergo a coronavirus test.

During the hearing, Justice Bandial recalled how his family members expressed satisfaction when they went to their constituency to cast their votes in the last elections because personnel of both the army and Rangers were deputed at the polling stations. This time, he observed, the ECP made a mistake by relying solely on police instead of the armed forces and Rangers.

The court, however, ignored a request for granting a stay against the ECP decision to hold by-poll in the entire constituency and made it clear that it would not decide the case without hearing the other side. The court asked the counsel, including the petitioner’s lawyer Mohammad Shahzad Shaukat and ECP’s Mian Abdul Rauf, to analyse the available material and see how much pervasive allegations of wrongdoing in the polling day were true.

The court also asked them to assist it in determining what standard under Section 9 of the Elections Act 2017 should be to go for fresh by-poll in the entire constituency.

Shahzad Shaukat argued that the court should determine how much material was available with the ECP to make an objective assessment to order by-poll afresh in the entire constituency.

The bench observed that it would appreciate if the map of the constituency highlighting the wrongs committed at specific polling stations, along with a detailed chart, was provided to the Supreme Court.

The Supreme Court also asked the ECP secretary to explain how much by-poll at a constituency cost, saying the court was conscious of the fact that Pakistan was a poor country.

In its order, the court noted that the ECP’s detailed order mentioned irregularities at different polling stations, while a preliminary inquiry by the returning officer highlighted that the polling process at 14 polling stations was hampered, two persons killed at one polling station and 40 polling stations affected because of aerial firing and 20 presiding officers went missing and could not provide the results in time.

The order went on to say that Chief Election Commissioner (CEC) Sultan Sikandar Raja himself had cited his personal experience that neither the inspector general nor the chief secretary of Punjab responded to his request. It was the federal government which provided security to the polling stations and staff through Rangers.

The underline tenor of the ECP report, Justice Bandial observed, was that police acted as silent spectators on the polling day and did not intervene to check intimidation, harassment and violence outside the polling stations.

The court observed that the ECP had a specific mandate under Article 218 of the Constitution, read with Section 9 of the Elections Act, to ensure honest, just, free, fair and transparent elections in accordance with the law and that any attempt of coercion, intimidation or pressure must be prevented. Clearly, it observed, Section 9 of the Elections Act operated in a limited time period and, therefore, the standards set for the election tribunal could not be imported in the case at hand.

The court observed that it would determine whether the ECP had on the basis of the evidence acted on the administrative/executive side or as a judicial forum.

Published in Dawn, March 17th, 2021