SC reinstates ECP’s decision for re-counting in NA-154, 81, 79

The Supreme Court on Monday reinstated the decision of Election Commission of Pakistan (ECP) for vote re-counting in three constituencies of National Assembly (NA).

A three-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justices Naeem Akhtar Afghan and Aqeel Ahmed Abbasi announced the verdict pertaining to recount in three constituencies including NA-154, NA-81, and NA-79. The judgment was announced with a majority of 2 to 1 with a dissenting note by Justice Aqeel Ahmed Abbasi.

In a 47-pages judgment authored by the CJP, the court said “the judgments/orders passed by the LHC in the aforesaid writ petitions do not suffer from any factual errors or legal infirmity, therefore, don not require any interference by this court, under Article 185(3) of the constitution. Accordingly, the above civil petitions are dismissed and leave to appeal refused.

The detailed judgment said, “It is also admitted that in respect of three of the constituencies applications to recount the ballot papers were submitted on 9 February 2024 and in respect of one on 10 February 2024.”

It said, “The legislature, however, had made a significant change (on 5 August 2023) in section 95(5) of the Elections Act, which was to take away the discretion vesting in the Returning Officer when considering an application seeking recount of the ballot papers.”

The court said, “When the writ petitions were filed before the High Court the amended section 95(5) was in place. However, the significance of the changes made in section 95(5) were not considered by the learned Judges of the High Court.”

It said that the court has already declared in its judgments that the election conflicts could only be challenged before election tribunal and that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved.

The verdict said, “The Returning Officer of one constituency noted on the application on 10 February 2024 that, ‘The application regarding recount the votes is not maintainable but without stating the reason why it was not maintainable.

The petitioner challenged the RO’s order by filing a petition on 11 February 2024 before the Commission. The RO in its report stated that ‘the application for recount was received at my office before consolidation,’ but the he could not recount the ballot papers ‘because of law and order situation created by the returned candidate.’

The order said, “In respect of another constituency, the RO acknowledged receipt of the application to recount on 9 February 2024, but stated he could not undertake a recount because ‘a huge number of political workers gathered outside the office of the undersigned and climbed the walls of the premises. A similar response was given regarding the third constituency.

Regarding another constituency, the RO responded that he had rejected the petitioner’s application because ‘the difference between the returned candidate and the applicant is 3557, the court noted.

The judgment said, “The ROs cannot surrender their powers to mob rule nor can forego their statutory duty to recount. If this is accepted it would create a very dangerous precedent and render the law regarding recounting meaningless by those resorting to lawlessness. This would also deprive the candidate seeking recount of the ballot papers of this statutory right/remedy. The rights and remedies which the law grants cannot be negated.”

The order said, “The High Court’s jurisdiction under Article 199 of the Constitution can only be invoked if a petitioner is an ‘aggrieved’ person. It is not understandable how anyone can be stated to be aggrieved if the ballot papers are recounted.”

The verdict further said, “Its Article 218(3) mandates that it is the duty of the commission to organize and conduct elections, and to conduct them honestly, justly, fairly and in accordance with the law.”

It said, “the Election Commission is a constitutional body and its Chairman and Members are entitled to respect. Unfortunately, at places some learned Judges of the High Court lost sight of this and passed derisive remarks.”

It may be mentioned here that PML-N members Azhar Qayum Nahra, Abdul Rehman Kanju, and Zulfiqar Ahmed have challenged the verdict of LHC before the top court regarding recount in NA-154 (Lodhran), NA-81 (Gujranwala), and NA-79 (Gujranwala).