LAHORE: The Lahore High Court (LHC) has ruled that the Election Commission of Pakistan (ECP) cannot undo its own decisions as it lacks the power of review.
Justice Shahid Karim issued the ruling, setting aside an ECP order where it directed a returning officer (RO) to recount votes after the consolidation of election results.
The judge observed that the ECP wrongly interpreted its inherent powers under the Election Acts 2017 by ordering a recount after the conclusion of the election process and the issuance of the gazette notification of the returned candidate.
He noted that sub-section 6 of Section 95 of the Elections Act confers the ECP with the power to direct a returning officer to recount the ballot papers before the conclusion of result consolidation proceedings.
Court dismisses commission’s order directing RO to recount votes after result announcement
If the ECP doesn’t exercise this power within the contours of this provision, “it cannot thereafter proceed to exercise such power on the misplaced notion that it can do so by invoking provisions of Section 8 of the 2017 Act”, Justice Karim said.
Section 8 gives ECP the powers to conduct free and fair elections.
Justice Karim explained that the ECP is constrained by Section 95(6) and cannot exceed its jurisdiction.
In the impugned order, he said, although the ECP referred to the provisions of Section 95(5) but ignored Sub-Section 6, which relates to the commission’s powers.
The judge observed that the ECP committed an error by stating that the commission may exercise “its inherent power to rectify any injustice committed during the course of the election.”
“This view is a violation of law and must be discountenanced. It cannot be sustained in view of the holding of the superior courts in different cases,” the judge wrote in his detailed judgement on a petition by PTI-backed independent candidate Bilal Ijaz from the National Assembly Constituency NA-81 (Gujranwala).
Through a short order, the judge on April 16 allowed the petition and struck down the ECP’s decision to hold a recount wherein Azhar Qayum Nahra of the PML-N was declared victorious.
Justice Karim said it was unfortunate that the ECP passed the impugned order, ignoring the judgments of the superior courts. He said the ECP is not the only authority tasked with the duties and obligations of holding fair and free elections under the Elections Act.
Therefore, after certain events have taken place, the commission must step aside and allow other bodies to take charge.
The judge observed that the lofty and legitimate aim of holding just and fair elections cannot be taken to confer carte blanche (complete freedom) on the ECP to expand its powers beyond the statutory realm.
He noted that a reading of the impugned order passed by the ECP betrays an increased appetite for accumulating power, which goes against the law’s intent.
The judge ruled that the ECP’s order amounts to reviewing its own declaration of results in the official gazette; therefore, the Election Commission should not have exercised its jurisdiction in the instant case after declaring the results.
Published in Dawn, April 24th, 2024
