ISLAMABAD: The Supreme Court was moved on Friday to set aside the Election Commission of Pakistan’s (ECP) decision to hold fresh by-election in NA-75 (Daska tehsil), Sialkot.

Filed by Advocate Mohammad Shahzad Shaukat on behalf of Pakistan Tehreek-i-Insaf candidate Ali Asjad Malhi, the petition contended that the ECP, while hearing complaints about missing results of 23 polling stations, could not order re-polling in the entire constituency.

“The ECP has no jurisdiction to pass a short order as this jurisdiction vests only with the Supreme Court, which already held in the 1993 Nawaz Sharif versus President of Pakistan and the 1998 Benazir Bhutto versus President of Pakistan cases that merely because several illegalities had taken place in certain polling stations, no justification existed in annulling elections of all polling stations,” the petition said.

PTI’s Asjad urges court to order re-poll only in 23 polling stations

The petitioner further said that the complaint by PML-N’s Syeda Nosheen Iftikhar pertained only to illegality and irregularity in 23 polling stations of NA-75.

“It is a settled law that the powers of ECP under Article 218 of the Constitution, read with sections 8 and 9 of the Elections Act 2017, are not absolute or unfettered, but are subject to judicial review by the court of law,” the petitioner contended.

The ECP has already suspended the district police officer, deputy commissioner, two DSPs and one assistant commissioner, who happened to be their own assistant returning officers and remained with the DRO and returning officer right from the commencement of delivering of the election material till receipt of the same, but no order against officials of the ECP had been passed or direction given by the ECP.

The petitioner said that the ECP’s Feb 25 short order was based on absolute misreading and non-reading of the record available on the file. This exercise, the petitioner alleged, prima facie negated findings given by the ECP in the short order where there was no mention of any negligence on the part of the administration.

The petition regretted that the constituency had been put to second by-election without any legal justification irrespective of the fact that no violation occurred during the polling till its closure.

The petition regretted that the ECP was in such a state of urgency that it had to resort to passing the short order, which did not contain any reason rather in utter derogation of all settled principles of law.

“Thus the short order is in violation of Article 10-A of the Constitution and that Article 225 of the Constitution could not be allowed to be rendered redundant by way of alleged illegal order passed by the ECP,” the petition contended.

In view of Section 9(4) of the Elections Act, it was obligatory on the ECP to have at least sought a reply from the appellant before proceeding to pass the order in the matter, it said.

The petition pleaded that during the course of hearing, the record of 23 polling stations had been minutely examined and nine of them had been found to be satisfactory by the returning officer. “Therefore, it is beyond comprehension how a fresh polling in the entire constituency has been ordered by the ECP in disregard of the nature and dimensions of its own proceedings,” the petition said.

Published in Dawn, March 6th, 2021

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