16 July 2004	Friday	27 Jamadi-ul-Awwal 1425

KARACHI, July 15: The election of successful candidates could be challenged before competent tribunals even if the Election Commission order against the May 12 by polls in the city was suspended or set aside by the high court , Attorney-General Makhdoom Ali Khan submitted on Thursday.

Replying to a court query whether the private respondents (the losing candidates) would be left with any remedy if the impugned EC order was suspended, the AG stated that the scope of Section 52 of the Representation of Peoples Act was different from its Section 103-AA and a high court verdict setting aside or suspending the impugned EC order under Section 103-AA would not stand in the way of an election tribunal decision annulling the polls after recording evidence under Section 52.

Other questions raised by a Sindh High Court division bench, comprising Justices Anwar Zaheer Jamali and Gulzar Ahmed, were whether the EC could set aside an election at the behest of complainants who did not appear and produce material to substantiate their complaints before it and whether it (the EC) was not empowered to regulate its procedure in any manner to do complete justice?

The AG said the EC order was entirely untenable in law. He said he was appearing on court notice and would make his submissions at the outset to assist the court irrespective of the arguments advanced by the counsel for the rival parties.

Going by the EC's own record, he said, there was no justification for invoking the 'exceptional' power conferred on the commission. There was no glaring 'illegality' or 'irregularity' floating on the surface of the record.

The summary procedure or power to regulate its procedure, the AG said, did not authorize the EC to disregard the norms of natural justice or the established law governing election matters.

The impugned EC order of June 9 was more like a petition drafted by a lawyer than a judgment delivered by a court. It failed to deal with specific rules or violations that necessitated annulment of the by polls.

It did not deal with the superior court judgments determining the scope of inquiry and authority under Section 103-AA. It peremptorily dismissed the argument that the complaints or telegrams it relied upon had no nexus with the voter turnout or the outcome of the by polls.

If incidents of firing or deaths in hit-and-run violence could justify annulment of voters' verdict, the AG submitted, firing a few shots and despatching telegrams was all that required of a losing contestant to have an election annulled.

Citing a number of judgments, he said superior courts never countenanced 'such malversion of electoral process'. The AG was assisted by Deputy Attorney-General Azhar Nadeem Siddiqui, who is not representing the EC.

ELECTORAL RECORD: Resuming his arguments earlier, the petitioners' counsel, Advocate Abul Inam, produced the record of voting in NA-240, NA-243 and PS 127, the constituencies affected by the impugned order.

In NA-240, the percentage of votes cast was 39 in October 2002 and 34 in May 2004. The constituency was carried by Muttahida Qaumi Movement in both the polls. In NA-246, the percentage was 37 in 2002 and 25 per cent in 2004. Muttahida won with a reduced margin in 2004.

In PS-127, the percentage went up from 41 to 49 but the PPP lost the seat to the MQM in 2004. According to the consolidated results compiled by the EC staff, MQM's Yousuf Munir Shaikh won in PS-127 by about 16,000 votes, M. Abid Ali Umang won in NA-240 by about 20,000 votes and Nisar Ahmad Pahnwar won in NA-246 by over 30,000 votes. All three are petitioners before the SHC.

In his arguments, Mr Inam said the EC could not have gone beyond the record to find out 'irregularities' apparent on the face of record to pass an order under Section 103-AA.

The 'satisfaction' of the EC under the provision was not intended to be subjective but should be based on objective material. No poll could be set aside if the alleged irregularity would not materially affect the outcome.

Advocate-General Anwar Mansoor Khan adopted the attorney- general's arguments but submitted a resume of authorities he relied upon. He said the EC was barred from assuming jurisdiction under Section 103-AA if an irregularity was not apparent on the face of record. If there was such an irregularity, only then could it hold a summary inquiry.

The advocate-general said the EC order was contradictory. It duly accepted the presumption of regularity attached to the returning and district returning officers' report but relied upon the complaints to the contrary made by the rival candidates. There was a difference between a 'polling station' and a 'constituency', which the commission ignored, he argued.