ISLAMABAD: The Supreme Court will take up on Wednesday (today) the hotly debated issue of by-election in NA-75 Daska.

A three-judge SC bench, headed by Justice Umar Ata Bandial and consisting of Justice Sajjad Ali Shah and Justice Yahya Afridi, will hear an appeal filed by PTI’s Ali Asjad Malhi, who is seeking overturning of the Election Commission of Pakistan’s (ECP) decision to hold a fresh by-poll in tehsil Daska of Sialkot.

The ECP had on Feb 25 ordered re-election in the entire constituency on March 18 after suspicions that the results of the by-poll held earlier may have been falsified. The decision was given on an application filed by Syeda Nosheen Iftikhar, the PML-N candidate for the National Assembly seat.

The PTI appeal, filed through advocate Mohammad Shahzad Shaukat, contends that the ECP, while hearing a complaint about 23 missing polling agents, cannot order re-election in the entire constituency.

While hearing complaint about 23 missing polling agents, commission can’t order re-election in entire constituency, argues appellant

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

Admittedly, the complaint by the PML-N candidate pertains only to illegality and irregularity to the extent of 23 polling stations, the appeal points out. It is a settled law that the powers of the ECP under Article 218 of the Constitution, read with Sections 8 and 9 of the Elections Act 2017, are not absolute or unfettered but subject to judicial review by the courts of law, it argues.

The ECP has already suspended the district police officer, deputy commissioner, two DSPs and one assistant commissioner who happened to be assistant returning officer and remained with the district returning officer and the returning officer of the constituency right from the commencement of delivering the election material till the receipt of the same, but no order was passed against the ECP officials, the appeal says.

This exercise, prima facie, negates the findings given by the ECP in the short order where there is no mention of any negligence on the part of the administration.

The appeal contends that the ECP’s Feb 25 short order is based on misreading and non-reading of the record available on the file.

It says that a second by-election has been ordered in the constituency without any legal justification, though no violation occurred during the polling till its closure.

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

Moreover, it says, the provisions of the Elections Act 2017 have been violated by the ECP while passing the short order since no basis for the alleged satisfaction of the commission exists that the election was marred by grave illegalities which materially affected the results of the entire constituency.

In view of Section 9(4) of the Elections Act, the ECP was obliged to seek a reply from the appellant before proceeding to pass the order in the matter, the petition argues.

It pleads that during the course of hearing, the record of 23 polling stations was minutely examined and record of nine of them was found to be satisfactory by the returning officer.

Therefore, it is beyond comprehension how a fresh poll in the entire constituency was ordered by the ECP in disregard to the nature and dimensions of its own proceedings, the appeal argues.

Published in Dawn, March 10th, 2021