Shikarpur repoll pleas adjourned to 17th
KARACHI, March 15: The Sindh High Court on Saturday adjourned the hearing of writ petitions moved by two National People’s Party candidates unofficially declared returned from NA-202 and PS-12 (Shikarpur) to March 17 for further arguments on the election commission’s authority to order partial re-balloting in a constituency in exercise of its powers under Section 103-AA of the Representation of People Act (RPA), 1976.
Dr Mohammad Ibrahim Jatoi and Abid Hussain Jatoi have challenged the EC’s order staying their official notification as returned candidates and ordering re-balloting at 18 polling stations of the two constituencies at the behest of their Pakistan People’s Party rivals, Aftab Shaban Mirani and Agha Arsalan Khan, without hearing them. An SHC division bench comprising Justices Azizullah M. Memon and Arshad Noor Khan decided to hear the petitions, issued notices to the EC, the respondent candidates and federal and provincial law officers.
Assisting the court at the fag end of the four-hour-long hearing on Saturday, Advocate-General Dr M. Farogh Naseem submitted that summary power to set aside balloting in a constituency was available to the EC under Section 103-AA of the RPA before the issuance of an official notification and it was not hit by the bar contained in Article 225 of the Constitution. But it comes alive only when election law violations are patent on the face of the record and summary inquiry as against a trial wherein recording of evidence is necessary is sufficient to reach a conclusion. A writ petition against the EC order under Section 103-AA was maintainable if no other remedy was available to the aggrieved party.
The moot point, the AG said, was whether the EC could order re-polling at selected polling stations under Section 103-AA as the provision specifically obliged the commission to declare polling in the entire constituency void and order a bye-election. Piecemeal re-polling is not contemplated by the provision, he said, referring to a series of superior court judgments and the provisions of law.
Appearing for the respondent candidates, Advocate Kamaluddin Azfar submitted that Section 103-AA was inserted in the RPA in 1991 and not in 1977 as stated by Advocate Abdul Hafeez Pirzada, the petitioners’ counsel. The EC could entertain complaints and extend relief under the provision within 60 days of declaration of results. It was meant to be a parallel remedy and the EC was not bound to follow a particular procedure. Both the respondent candidates availed of the first opportunity to convey their grievance to the EC as the unofficial results became known on February 19.
About the illegalities and irregularities complained of by his clients, Mr Azfar said 16 presiding officers, mostly teachers serving in grade 17 or 18, were replaced by low grade government employees on February 17. Six hundred ballots were found missing. Polling stations in the kutcha area were inaccessible and the respondents polling agents could not enter there. The percentage of votes cast there ranged as high as 90 to 98 per cent. If the votes cast at these polling stations were excluded, the respondents would lead by a big margin. The percentage of votes cast at other polling stations was as low as 32, the counsel maintained.
Resuming his arguments earlier, Mr A.H. Pirzada maintained that the jurisdictional fact essential for the EC to assume jurisdiction over the complaints was non-existent and the EC order was a nullity in the eyes of law. The power under Section 103-AA was meant to be sparingly exercised in exceptional circumstances and no interim injunctions should be issued, particularly against a returned candidate. A stay order against a candidate not only deprives the returned candidate to represent his constituency but also disenfranchises the voters of a constituency. In the instant case, the EC order had also irreversibly deprived the NPP of its due share of the seats reserved for women and minorities. The order was passed ex parte without issuing notices to the petitioner candidates. Only if a returned candidate failed to file the election expenses’ returns within 10 days could he be restrained from taking oath.
Advocate Pirzada said the respondent candidates did not seek fresh elections in the entire constituency and requested re-polling only at 20 polling stations, which was beyond the purview of Section 103-AA. They first approached the high court and then withdrew their petitions to seek a remedy from the EC. He requested the court to apply the same reasoning as it did in dismissing the MQM candidates’ petitions, set aside the impugned EC order and ask the aggrieved contestants to seek their remedy from election tribunals constituted by the EC under the RPA.
The bench accepted the counsel’s plea to take judicial notice of the fact that if polling of 65 per cent votes at a polling station was ipso facto treated as an evidence of irregularity, re-election would have to be held in about 120 constituencies. It asked Advocate Azfar to dilate on the question of partial re-polling under Section 103-AA on Monday. Both sides agreed that the petitions should be disposed of at the earliest. The EC was represented by assistant election commissioner Ataur Rehman.
Disposing of PML (N) nominee Syed Hafeezuddin’s petition against the election of PPP candidate Abdul Qadir Patel’s from NA-239 (Karachi), the bench, meanwhile, noted that the petitioner has sought its withdrawal in order to file an election petition before a competent tribunal. The petitioner also stated that his plea under Section 103-AA was pending before the EC and prayed for a direction for its early disposal. “Needless to state that the petitioner has a right to be heard and have an appropriate order passed on his pending petition”, the bench further observed in its disposal order.