ISLAMABAD: The Supreme Court by a majority of 2 to 1 set aside the Lahore High Court’s (LHC) judgment announced in writ petitions regarding recount of votes.
Following the judgment, Pakistan Muslim League-Nawaz (PML-N) members Azhar Qayum Nahra, Abdul Rehman Kanju, and Zulfiqar Ahmed have been reinstated as National Assembly members. They have filed the petitions before the apex court for recount of votes in NA-154 (Lodhran), NA-81 (Gujranwala), and NA-79 (Gujranwala).
In the general elections, three independent candidates affiliated with PTI— Rana Faraz Noon from NA-154, Bilal Ejaz from NA-81 Gujranwala, and Ehsanullah Virk from NA-79 Gujranwala— were initially declared successful.
NA-81: LHC sets aside Nahra’s victory notification
A three-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi, on Monday, announced its reserved seats against the LHC’s judgments. Justice Abbasi dissented.
The different benches of the High Court in the writ petitions of Rana Muhammad Faraz Noon, Abdul Rehman Khan Kanju, Chaudhary Bilal Ejaz, and Muhammad Atif against the Election Commission of Pakistan (ECP) had passed the impugned judgments.
The apex court emphasised that the Election Commission is a constitutional body and its chairman and members are entitled to respect.
Unfortunately, at places some judges of the High Court lost sight of this and passed derisive remarks.
Every constitutional body and constitutional office holder, in fact everyone, deserve courtesy and respect. Institutions gain in stature when they act respectfully.
The judgment noted that in these cases the difference in the margin of victory was well within the stipulated percentile/ number. Nonetheless, the contesting respondents (SIC MNAs) challenged the order of the recount and/ or challenged the result of the recount by filing writ petitions in the High Court under Article 199 of the Constitution.
The apex court’s verdict stated that the judges overlooked the constitutional preconditions before exercising jurisdiction under Article 199 of the Constitution, which were that the petitioner must be aggrieved and must not have other adequate remedy; on both these counts the writ petitions were not maintainable. They also failed to observe that Article-199 commences with the words “Subject to the Constitution” and that this limitation was absent from Article 225 of the Constitution, where under election petitions are filed before the Election Tribunals.
The judges of the High Court also allowed the writ petitions without considering the law, which had been interpreted and explained in the cited precedents of this Court, particularly of the larger four and five member Benches, respectively in the cases of Javaid Hashmi, Ghulam Mustafa Jatoi and Aftab Shahban Mirani.
In these precedents of this Court it was stated that the jurisdiction of the High Court (under Article 199 of the Constitution) can only be invoked when “no legal remedy is available to an aggrieved party” “or in respect of the orders which are coram non judice, without jurisdiction or mala fide.”
The contesting respondents who had invoked the jurisdiction of the High Court could not be considered to be aggrieved by the administrative-ministerial act of recounting. Moreover, they had other adequate remedy. Therefore, the two prerequisites (aggrieved person and absence of adequate remedy) necessary to invoke Article 199 were not met.
The Commission was also not coram non judice nor lacked jurisdiction in ordering recount. The Constitution has bestowed on the Commission (and not on the High Courts) the duty to conduct elections in accordance with law.
And it cannot be contended that, when the circumstances envisaged in Section 95(5) of the Elections Act were met the seeking of and the ordering of recount of the ballot papers was mala fide.
Instead of filing writ petitions the contesting respondents could have filed election petitions before the Election Tribunals.
And, any person aggrieved by the decision of the Election Tribunal could then have filed an appeal to the Supreme Court, under Section 155 of the Elections Act.
The returning officer did not in any of the abovementioned cases state that the consolidation of results had already taken place and, therefore, the application seeking recount of the ballot papers could not take place.
The application seeking recount in respect of one constituency (subject of CPLAs No 1573 and 1673 of 2024) was dismissed holding that it was not maintainable without giving any reason for its non-maintainability.
In respect of another constituency (subject of CPLA No 1729 of 2024) it was stated that the applicant had failed to substantiate his claim, but it was not stated what he was required to substantiate and later the returning officer stated that recounting could not take place because a mob had gathered which had prevented him to recount the ballot papers.
The judgment said, similarly in respect of another constituency (subject of CPLA No1767 of 2024) the returning officer rejected the recount application stating that the applicant had failed to establish his claim and that a mob had gathered which had prevented him to recount the ballot papers.
In respect of the provincial assembly constituency (subject of CPLA No 2433 of 2024) superfluous reasons were given by the returning officer in rejecting the application seeking recounting of the ballot papers.
Returning officers cannot surrender their powers to mob rule nor can forego their statutory duty to recount. If this is accepted it would create a very dangerous precedent and render the law regarding recounting meaningless by those resorting to lawlessness. This would also deprive the candidate seeking recount of the ballot papers of this statutory right/ remedy.
The rights and remedies which the law grants cannot be negated.
Copyright Business Recorder, 2024
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