Irregularities in Daska by-poll: LHC sets aside ECP action against election officials

Published December 22, 2022
A file photo of Justice Shujaat Ali Khan of the Lahore High Court. — Picture via LHC website
A file photo of Justice Shujaat Ali Khan of the Lahore High Court. — Picture via LHC website

LAHORE: The Lahore High Court has set aside the proceedings against more than a dozen officials of the provincial departments initiated by the Election Commission of Pakistan (ECP) for their role in the alleged rigging committed in the 2021 by-poll of NA-75, Daska.

“Despite repeated queries, learned counsel for the commission has not been able to convince this court that as to what is cavil with the commission to refer the matters of the petitioners for disciplinary action against them by their parent departments, especially, when they do not fall within the definition of election officials,” Justice Shujaat Ali Khan observed in his verdict allowing the writ petitions filed by Asif Hussain and 20 other officials.

The petitioners challenged the show-cause notices and the subsequent proceedings against them by the ECP.

Senior lawyer Hafiz Tariq Naseem mainly represented the petitioners while other counsels adopted his arguments with little additions.

Court says after poll, duty staff no longer remains within ECP purview

The main argument presented by the petitioner’s counsel was against the competence of the ECP to issue the show-cause notices.

Justice Khan observes that a person, who has been assigned any election duty, does not remain under the control and superintendence of the ECP upon declaration of fate of an election in a constituency simply for the reason that once fate of an election is declared the hiring staff lose their status as election official and the ECP does not enjoy jurisdiction to proceed against them.

He states that according to section 55(1) of the Election Act, 2017, a person can be deemed to be under the control, superintendence and discipline of the ECP for the period commencing from his date of appointment or deputation till publication of name of the returned candidate in the official gazette.

“A cursory glance over section 55 of the Act, 2017 shows that the ECP has been empowered to proceed against an election official under the applicable disciplinary law,” he adds.

The judge says it is very ironical on the one hand the counsel for the ECP took a specific plea that matters pertaining to pre- and post-election issues, including initiation of departmental proceedings against any delinquent official, are to be seen in the light of the referred provisions of the Constitution but has not been able to give any justification as to why impugned show-cause notices have been issued while relying on section 55 of the Act, 2017.

Commenting on the case of one of the petitioners, the judge notes that the departmental proceedings against a government servant stand abated in the event of his retirement but initiation of the proceedings against the petitioner by the ECP, despite his retirement, speaks volumes about the fact that it proceeded to initiate proceedings against the petitioner without affirming as to whether he is in service or not.

Justice Khan maintains that upon declaration of fate of the election in the constituency, the petitioners no more remained the election officials, hence, the ECP has no jurisdiction to initiate proceedings against them.

“Resultantly, all these writ petitions are accepted and impugned disciplinary proceedings initiated by the Commission against the petitioners are declared coram-non-judice, thus, set aside,” the verdict reads.

However, the judge, before parting with the judgment, observes that if the ECP thinks that the petitioners were involved in any subversive activities during their deployment in election duty, it would be at liberty to refer their matter to their parent departments for initiation of proceedings under the relevant law.

Published in Dawn, December 22nd, 2022

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