PTI candidate moves SC over 'unjustified' ECP decision on Daska by-election

Published March 5, 2021
In this Feb 8 file photo, PTI's Ali Asjad Malhi is seen canvassing ahead of the NA-75 (Daska) constituency on Feb 19. — Photo courtesy: Ali Asjad Malhi Facebook
In this Feb 8 file photo, PTI's Ali Asjad Malhi is seen canvassing ahead of the NA-75 (Daska) constituency on Feb 19. — Photo courtesy: Ali Asjad Malhi Facebook

PTI's Ali Asjad Malhi, who had contested the by-election for the NA-75 (Daska) constituency last month, on Thursday moved the Supreme Court against the Election Commission of Pakistan's (ECP) order to hold a re-election in the constituency,

In his petition, Malhi said there was "no legal justification" for the ECP to declare the polls null and void, adding that the ECP's order was "clearly contrary to law and facts of the case".

He contended that the ECP had taken the decision in "complete oblivion" of the circumstances and facts and it was thus "manifestly unjust and illegal".

A day after the Feb 19 by-election, the ECP had said it suspected the results of 20 polling stations had been falsified as the PML-N alleged massive rigging. The commission said results from the said polling stations were received with "unnecessary delay", adding that it tried to contact the presiding officers several times but with no success.

The election commission had stopped the district returning officer (DRO) and returning officer (RO) from announcing the initial results for the by-election and directed them to conduct a complete inquiry and identify those responsible for the mismanagement.

Later that month, a five-member commission, headed by the chief election commissioner, ordered that fresh elections be held in Daska on March 18.

In his petition, Malhi said it was "not legal" for the ECP to decide the matter pending before it "through a short order having drastic results", adding that it was beyond comprehension why the ECP was in "such an urgency" that it passed its decision in the form of a short order.

He argued that the order was in violation of Article 10-A of the Constitution that deals with the right to fair trial and due process and had rendered Article 225 — related to election disputes — redundant.

Listing further grounds, the petition said the ECP had also violated Section 9 of the Elections Act, 2017 (power of the commission to declare a poll void), because there was "no basis for the alleged satisfaction of the Election Commission that the election was marred by grave illegalities which had materially affected the result of the entire constituency".

The ECP did not seek a reply from Malhi as well, it noted.

The petition also referred to the ECP's concern about the results of 23 polling stations, saying that during hearing of the matter, it was found that the result of nine polling stations had been found to be satisfactory by the RO. It questioned whether the suspected tampering of results in 14 stations was enough to order re-polling in the entire constituency.

According to Section 154 of the Elections Act (decision of the election tribunal), the ECP was bound to make a final order along with reasoning in support of its decision which was not done, Malhi claimed.

He asked the Supreme Court to set aside the ECP's order and direct it to declare and notify the result of the by-election under Section 124 of the Elections Act, 2017.

Nine candidates were in the race for the NA-75 by-election, of whom the main candidates were Malhi and PML-N's Nousheen Iftikhar Shah.

Malhi has also made Shah a respondent in his petition.

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