Malik ABDUL RAOOF vs Khawaja MUHAMMAD SADIQ, ADDITIONAL
This matter concerns an appeal against a High Court decision in a Letters Patent appeal regarding the powers of an Election Tribunal in the context of an election to a Basic Democracy. The core legal question presented is whether an Election Tribunal, upon allowing an election petition, possesses the complete discretion to either declare the defeated candidate as duly elected or to declare the election void, thereby necessitating a fresh election. The High Court had affirmed that such discretion exists. The Election Tribunal had previously identified several irregularities, including compromised ballot box security, improper counting procedures by the Returning Officer rather than the Presiding Officer, the presence of polling staff under the influence of a candidate's election agent, and the placement of a polling camp within prohibited proximity to the polling booth. The Supreme Court granted leave to appeal to examine the scope of the Tribunal's authority in exercising this discretion when election irregularities are established, specifically addressing whether the Tribunal is mandated to declare the election void under such circumstances.
- Does an Election Tribunal have the discretion to declare a defeated candidate elected instead of declaring the election void upon finding irregularities?
- Is a fresh election mandatory when an Election Tribunal finds that ballot box security and counting procedures were compromised?
ORDER
1. CORNELIUS, C. J.-A point of substantial importance , arises in this case. The High Court, in Letters Patent appeal has held that an Election Tribunal, when it allows a petition against an election to a Basic Democracy, has complete discretion to decide whether to declare the defeated candidate (there were only two contestants) to have been duly-elected, or to declare the election void; so that a fresh election becomes necessary.
2. The findings of the Tribunal were as follows :-
(1) for a period during the polling the lock and seal on one of the ballot boxes were not intact they were secured when the fact was discovered ;
(2) Counting of votes was done by the Returning Officer and not by the Presiding Officer as required by law
(3) at one polling station, the Polling Officer and a Polling . Clerk, were persons who were, the one indirectly, the other directly, under the authority and influence of a person who was the Election Agent of one candidate ; and (4)the polling camp of this candidate was within 35 yards of the polling booth.
3. Leave to appeal is granted. Security-Rs. 1,000. Stay to continue.