ALI ASJAD MALHI Versus Ms. Syeda NOSHEEN IFTIKHAR M. Shahzad Shoukat , Ghulam Mustafa Kandwal
This matter arises from a challenge to the Election Commission of Pakistan's ("ECP") judgment declaring the entire bye-election of NA-75, Sialkot-IV null and void following widespread irregularities, violence, intimidation, and missing presiding officers on polling day. The core legal question concerns the standard of proof, quantum of evidence, scale, and severity of violations required for the ECP to order a re-poll in an entire constituency under Article 218(3) of the Constitution and Section 9 of the Elections Act, 2017, as compared to an Election Tribunal. The Court observed that the ECP's executive and quasi-judicial powers under Section 9 operate within a limited timeframe and require examination regarding whether the annulment of the entire election was within jurisdictional parameters. The Court laid down that while the ECP is empowered to ensure fair elections, further analysis of the material on record is required to determine the benchmarks for grave illegalities warranting a whole versus partial re-poll. The case was adjourned for further arguments with a direction to the ECP to provide a mapped chart of the constituency.
- What standard of proof, quantum of evidence, scale and severity of violations of law will warrant a re-poll in the entire constituency?
- Whether the benchmarks laid down by the law for the Election Tribunal to annul an election and order a re-poll apply strictly to the ECP under Section 9 of the Elections Act, 2017?
- What transgressions on the polling day could constitute grave illegalities or violations calling for a fresh rather than a partial re-poll?
- In what situations would non-pervasiveness of the illegalities or violations committed on polling day still attract the same result?
- Article 218(3), Constitution of Pakistan 1973
- Section 9, Elections Act 2017
ORDER
The impugned judgment of the Election Commission of Pakistan ("ECP") dated 08.03.2021, which was preceded by a short order dated 25.02.2021, has been read to the Court. The relevant facts of the present lis are that on 20.02.2021, a day after the polling in the bye-election of NA-75, Sialkot-IV had concluded, respondent No. 1 (a contesting candidate) complained to the Returning Officer and the ECP about irregularities committed at twenty polling stations. Thereafter, on completion of his preliminary inquiry, the Returning Officer vide report dated 21.02.2021 accepted the claim of respondent No. 1 only to the extent of fourteen polling stations. However, after hearing the parties, ECP in its impugned short order dated 25.02.2021 declared the whole election of NA-75, Sialkot-IV null and void.
2. It is accepted by all sides appearing in the matter that two persons were killed at one polling station, roughly forty polling stations were affected by aerial firing and Presiding Officers of twenty polling stations went missing because of which they could not hand over the results to the Returning Officer in time. More importantly, the underlying tenor of the impugned judgment is that the police were silent spectators who did not intervene to check the acts of intimidation, harassment and violence that took place outside the polling stations on election day. In fact, the impugned judgment has observed that neither the Inspector General of Police, Punjab nor the Chief Secretary, Punjab responded to the ECP's request on polling day for controlling the law and order situation in Daska. Instead, only the Federal Government reacted by providing protection through Rangers for the polling staff, polling stations and polling material.
3. There is no cavil with the proposition that ECP is empowered under Article 218(3) of the Constitution read with Section 9 of the Elections Act, 2017 ("Act") to ensure that elections are conducted honestly, justly, fairly and lawfully in such a manner that coercion, intimidation and pressure tactics are stymied. However, the question before us is: what standard of proof, quantum of evidence, scale and severity of violations of law will warrant a re-poll in the entire constituency. As it presently stands, Section 9 ibid operates in a very limited span of sixty days following the publication of the result of an election. The jurisdiction of ECP under the said provision partakes of executive and quasi-judicial powers that may be exercised promptly to cure any irregularity in the conduct of an election. Therefore, the benchmarks laid down by the law for the Election Tribunal to annul an election and order a re-poll may not strictly apply to the ECP under the said Section without suitable modification. In such circumstances we would like to examine whether the impugned action of the ECP, namely, its allegedly excessive response to the prevailing situation in Daska was within its jurisdictional parameters. The learned counsel for the parties have so far not analyzed the extensive material on record to relate the same to the powers and jurisdiction of the ECP under the Constitution and the Act. In particular, the following questions have not been addressed: a. What transgressions on the polling day could constitute grave illegalities or violations calling for a fresh rather than a partial re-poll? b. In what situations would non-pervasiveness of the illegalities or violations committed on polling day still attract the same result?
4. To assist the Court in answering these questions, we would appreciate if ECP could present a map of the constituency labelling the polling stations where specified wrongs were committed along with a chart explaining the said labels. To come up for arguments on the foregoing points on 19.03.2021.
MWA/A-15/SC Order accordingly.