ISLAMABAD: On an appeal filed by Pakistan Tehreek-i-Insaf chief Imran Khan against recount of votes, the Supreme Court on Wednesday suspended the Lahore High Court order and issued notices to the Election Commission of Pakistan, returning officer of the NA-131 constituency and Pakistan Muslim League-Nawaz leader Khawaja Saad Rafique.

The LHC earlier on Aug 4 had ordered recounting of votes in the Lahore-IX constituency, where Mr Khan had defeated the former railways minister with a narrow margin of 680 votes.

In his appeal filed before a three-member SC bench, headed by Chief Justice of Pakistan Mian Saqib Nisar, the PM-in-waiting argued that the LHC order of votes recount was against constitutional provision and the Elections Act, 2017. Senior counsel Babar Awan pleaded the case on behalf of Mr Khan.

Khawaja Saad Rafique lost election in Lahore constituency to PTI chief by a margin of 680 votes

The counsel for Mr Rafique, Sardar Aslam, argued that votes could be recounted in any constituency where the margin of success was less than five per cent of the total votes polled. He recalled how the PTI chief in his first speech after the July 25 polls had announced that his party would facilitate reopening of constituencies for vote recount to remove his opponents’ doubts over results.

However, the CJP observed political leaders could make ‘political’ statements and the lawyer should address the matter at political forums. The SC later issued notices to the respondents in the petition namely the ECP, the RO of NA-131 constituency and the PML-N candidate.

How the court could allow any constituency to go unrepresented after the elections, the bench observed, adding the LHC could not intervene after the compilation of the results of any constituency.

Justice Ijaz-ul-Ahsan, a member of the SC bench, observed that any candidate could approach the election tribunal for the redressal of his grievance.

In his petition, Mr Khan argued that his opponent’s application for recount of votes was allowed and after ‘recount of entire rejected votes’ he (Khan) was again declared successful. Yet the PML-N leader requested for the ‘recount of entire valid votes’ of the constituency. The returning officer turned down the request, with an observation that a second recount was barred under the Elections Act 2017.

Mr Rafique then filed an application against the July 28 order of the RO before the ECP in terms of Section 95(6) of the Elections Act, 2017, the petitioner stated. But instead of pursuing or waiting for the ECP order, Mr Rafique instituted the petition before the LHC that decided in favour of recount of votes, , the petitioner added.

Mr Khan regretted that Mr Rafique filed the writ petition before the LHC without impleading the necessary party, which was against the principle of equity and fair play.

The petitioner contended that it was the mandate of the law that the writ petition was only maintainable under Article 199 of the Constitution if the aggrieved person had no other alternative efficacious remedy in accordance with the law.

Thus, a person after choosing a statutory remedy could not abandon it and rush to file a writ before the high court, the petitioner argued, adding that the process of consolidation of the elections result could not be reversed under the writ jurisdiction while adversely affecting the process of democratic transition.

While hearing the case of PTI’s Abida Raja against rejection of her nomination papers on a reserved seat, the CJP had recently expressed concern over the mess created by the ECP during the July 25 general election. Recalling that he had called Chief Election Commissioner Sardar Mohammad Raza thrice on elections day but the latter did not pick up his phone, maybe because he was sleeping, the CJP had remarked. The CJP had also expressed his concern over the failure of the Result Transmission System (RTS).

Jamshed Dasti’s plea rejected

The apex court also rejected a request of Pakistan Awami Raj (PAR) leader Jamshed Dasti for recounting of votes in the NA-182 (Muzaffargarh) constituency from where PPP candidate Mehr Irshad Ahmed was declared successful.

On a court query, Mr Dasti informed the bench that he had lost the elections by 2,400 votes as per the results issued by the returning officer on July 26 at 2pm. The court rejected the request for votes recount, with an observation that he should approach the appropriate forum.

Published in Dawn, August 9th, 2018