Tuesday Mar 16 2021

SC dismisses PTI request to suspend ECP order on re-election in NA-75 Daska

  • Justice Bandial says ECP is a constitutional institution and the Supreme Court respects it.
  • PTI candidate's request to overturn ECP decision to call a re-election turned down.
  • Supreme Court to determine whether re-election needs to be done in entire constituency or just the contesting polling stations.
  • Judge says it was ECP's mistake to not ask the Army to ensure security in the Daska by-polls. 

ISLAMABAD: The Supreme Court of Pakistan on Tuesday dismissed a request to suspend the Election Commission of Pakistan’s (ECP) order regarding the holding of re-elections in the NA-75 Daska constituency.

The case, filed by the PTI candidate for the NA-75 seat, was heard by a three-member bench headed by Justice Umar Ata Bandial.

Justice Bandial observed that the ECP is a constitutional institution, adding that while the Supreme Court will continue to hear the case, the re-election will proceed at all costs.

“The Supreme Court respects the ECP,” observed the judge, adding that the bench now only has to decide whether polling ought to be held in the complete constituency or the 20 polling stations of NA-75 that were mired in controversy.

Read more: ECP declares NA-75 polling void, orders fresh elections in entire constituency

Meanwhile, the lawyer for PTI candidate Ali Asjad Malhi told the court that Daska has 360 polling stations and more than 400,000 registered voters in the constituency. 

He added that PML-N candidate Nausheen Iftikhar had complained to the ECP that they had not received the results from 23 polling stations.

To this, Justice Bandial asked whether the PTI candidate received the results for the remaining 340 polling stations.

The PTI lawyer responded saying that they were told by the returning officer that the results of 14 constituencies were missing.

“The ECP gave the order for repolling [in all polling stations] on the basis of violence [in the constituency],” said PTI lawyer Shahzad Shaukat. 

Read more: Code of conduct was breached during Daska by-polls, ECP tells Supreme Court

At this point, Justice Qazi Muhammad Ameen, member of the bench, remarked that it was the administration’s responsibility to stop violence at polling stations.

At this, the PTI lawyer told the court that the DRO did not lay any blame on the civil administration, yet the ECP wanted to hold re-elections in the entire constituency despite the DRO’s report.

At this, Justice Bandial intervened and observed that a lack of police personnel led to violence in polling stations.

The PTI lawyer then argued that the ECP could not have ordered repolling through a short order, as only superior courts can issue short orders.

Upon hearing this line of argument, Justice Ameen agreed with the contention and observed that since the chief election commissioner was not a judge, he could not issue a short order.

Read more: Supreme Court seeks ECP records on Sialkot's NA-75 Daska by election

However, Justice Mazhar Ali Naqvi, the third member of the bench, intervened and remarked that superior courts issuing short orders is just a practice, not the law.

Later, the ECP lawyer came before the bench and told the judges that the Commission had changed the date for the re-election as the interior ministry had warned that the situation remains tense in Daska.

Read more: PTI challenges ECP's re-polling decision for NA-75 in Supreme Court

Justice Naqvi then asked the ECP lawyer if videos of the violence could be presented before the body. He also wondered how it could be determined that the videos were from that day.

“Did the ECP decide the case on the basis of the videos and WhatsApp [messages]?” asked Justice Naqvi. 

ECP should have called the army

During the hearing, Justice Bandial recalled that in the 2018 polls, his family had praised the electoral process. He added that this was because Pakistan Army was deployed during the elections to maintain order. 

“It was a mistake to not deploy the army in the Daska elections,” observed Justice Bandial. 

He noted that the ECP had relied on police for maintaining order and asked if the Punjab police chief had submitted his report on the polls.

To this, the ECP lawyer told the court that the IG had not yet submitted a report. Justice Bandial asked why the ECP had not issued a contempt notice to the IG for his failure to do so.

Read more: New staff to be appointed for 20 polling stations where results were 'doubtful'

The ECP lawyer told the court that as per a report from the interior secretary, the polls in Daska were not peaceful. He added that as per the report, terror was spread in the constituency through firing and violence.

At this, Justice Naqvi rhetorically asked which elections have been free of such incidents.

“We can call these incidents [part of our] election culture,” observed Justice Naqvi. At this, the PTI lawyer agreed with the bench and said such incidents do happen in elections.

However, Justice Ameen said there needs to be an end to such incidents, asking “Will democracy work under the shadow of guns?”

The court subsequently adjourned the hearing till March 19 and ordered the ECP secretary to explain the expenses incurred in the elections. The bench also observed that the apex court can take action as an executive or a judicial forum.

"Elections should be transparent and free from coercion," said the Supreme Court. It added that it was important to look at all the evidence submitted before the court.