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February 25, 2021

Just six days to go before Senate polls: ECP ought to expedite its decision on NA-75

National

February 25, 2021

ISLAMABAD: The Election Commission of Pakistan (ECP) ought to quickly reach a conclusive decision on the NA-75 Daska (Sialkot) by-election muddle if the winner of the National Assembly seat is to be allowed to cast a vote in the upcoming Senate elections.

If a re-poll is ordered for the entire constituency or for the selected 20 polling stations by the ECP, it is unlikely that fresh nomination papers would be sought from intending contestants. In that case, only the candidates who had taken part in the February 19 contest would be eligible to run.

The re-poll is required to be held during the remaining four days of the current month. Even after polling, a couple of days will be needed under the Elections Act to give time to the ECP to issue a formal notification of the results of the constituency. Only then will the winner be able to vote in the Senate polls.

The desperation shown by the principal contenders to bag this single seat at all costs reflects their keen desire to add another vote to their tally in the Senate elections from the National Assembly for the Islamabad seat. Both will be disappointed if this is not possible given the limited time available.

In view of the expected fierce clash between the candidate of the ruling coalition, Finance Minister Dr Hafeez Sheikh, and Pakistan Democratic Movement (PDM) nominee Yousaf Raza Gillani for the Islamabad seat, every vote in the electoral college is crucially important for both the contenders.

Even after the ECP decides one way or the other on the Daska election, an aggrieved party could challenge the decision in the high court. And anyone displeased with that judgment could also knock on the doors of the Supreme Court. The second option available to the party that loses at the ECP will be to approach the election tribunal of the Lahore High Court (LHC). Its decision is also challengeable in the apex court.

All the orders of the ECP can be appealed in the high court. Generally, the appellants dispute the ECP decisions to get them nullified or to the proceedings at the electoral commission. There are many recent examples to illustrate this point. One case has been lingering in the ECP for more than six years now, with the parties exasperated because of these delaying tactics continuously protesting.

Section 158 of the Elections Act says the election tribune (ET) will declare the election as a whole to be void if it is satisfied that its result has been materially affected by reason of the failure to comply with the law or the rules in connivance with the returned candidate; or the prevalence of extensive corrupt or illegal practices at the polls.

Under section 156, the ET will declare the election of the returned candidate to be void if his/her nomination was invalid; or he/she was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or his/her election has been procured or induced by any corrupt or illegal practice; or a corrupt or illegal practice has been committed by him/her or his/her election agent or by any other person with his/her consent or connivance or his/her election agent.

If the contravention or corrupt or illegal practice is proved at a polling station, the ET may, while declaring election of the returned candidate void, direct a re-poll at the polling station. The election of a returned candidate will not be declared void on the ground that any corrupt or illegal practice has been committed if the ET is satisfied that it was not committed by or with his/her consent or connivance or his/her election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission; or that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member.

Section 157 says the ET will declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected if it is claimed by the petitioner or any of the respondents, and the ET is satisfied that the petitioner or other contesting candidate obtained more votes than the returned candidate; or the voters deliberately threw away their votes in favour of the returned candidate fully knowing that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member. The ET will presume, unless the contrary is proved, that the voters have not deliberately thrown away their votes and were not aware of lack of qualification or disqualification of the returned candidate.