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February 26, 2021

ECP’s unprecedented order on NA-75


February 26, 2021


ByTariq Butt

ISLAMABAD: The unprecedented decision by the Election Commission of Pakistan (ECP) to declare the NA-75 Daska by-election null and void and order a re-poll in the entire constituency is based on multiple grounds.

Among them, the most important is the record “collected [by the ECP] through different sources” that was relied upon before annulling the by-poll. The short order did not name these “different sources”. However, what is evident is that the ECP did not reach its conclusion merely on the basis of the record presented by the contesting parties and the returning officer (RO) appointed by the ECP.

Thursday’s ruling echoes the strong statement issued by the ECP on polling day that spoke of suspicions and doubts about the entire electoral process and pinpointed glaring flaws in the process and the non-availability of senior administration and police officials of the Punjab government on the night of the polls despite repeated attempts by Chief Election Commissioner (CEC) Sikandar Sultan Raja. It was an unprecedented statement, which clearly foreshadowed the ECP’s stinging order issued on Thursday. After issuing the earlier statement, the ECP had sent its Punjab election commissioner and his deputy to the constituency for an inquiry. Their findings helped the ECP get a clearer picture of the actual facts on the ground and the situation prevailing on polling day.

The decision did not confine itself to the mysterious disappearance of the presiding officers of over a dozen-and-a-half polling stations, the fact that they had submitted their results to the RO after a delay of several hours or to the lame excuses like fog, a breakdown of transport, low phone batteries etc. Rather, the order went far beyond when it ruled that a conducive environment was not available for the candidates and voters and “the election had not been conducted honestly, justly, fairly and in a transparent manner, and incidents of murders, firing, bad law and order situation creating harassment for the electorate and other circumstances led to make the process of result doubtful and unascertainable.”

Meanwhile, regardless of the facts placed before it by the Pakistan Muslim League-Nawaz (PML-N) and Pakistan Tehreek-e-Insaf (PTI) and the arguments advanced by their lawyers in support of their positions before the five-member ECP, the electoral forum through the instant order established that it was an independent institution that was capable of taking decisions freely and without fear or favour. It is an obvious departure from the moves of the past ECPs, which had often been extremely controversial and had become the punching bags of the political parties for this reason.

The ECP ruling confirmed the widespread reports from independent sources about the situation prevailing in the constituency on February 19. According to most observers, chaos and lawlessness ruled the day and the administration remained a silent spectator. Gunmen resorted to indiscriminate firing in certain areas to scare away the voters.

One upshot of the ECP decision is that the future winner of the NA-75 seat will not be able to cast a vote in the Senate polls on March 3 as the re-election take place on March 18. In the 2018 parliamentary polls, the seat had been won by the PML-N.

It will be a huge challenge for the ECP to hold the re-poll on March 18 in a peaceful, fair, just and transparent manner and ensure that a February 19-like situation is not repeated. The role of the election machinery comprising the Punjab government servants, mostly employees of the education department, would be under close scrutiny. Had it performed its assigned duty on polling day without succumbing to pressure, the ECP's present order would not have come.

The detailed ECP order is likely to provide for punishment for the officials involved in electoral malpractices and those who went against the law on February 19. Even before that, the ECP had initiated concrete action against the provincial officials for failing to perform their legal and constitutional duty. It shows that the ECP is not content with merely issuing the current order, declaring the by-poll null and void, but wants to set a precedent of moving against the officers who violated the law during the elections.

Legal experts, including Ali Zafar Shah, who is the PTI candidate for a Senate seat from Punjab and who argued the present case in the ECP, are of the view that the ECP order was appealable in the high court -- an option that is available to the PTI. Experts also claim that the ECP would call for fresh nominations for a re-poll and the previous nomination papers would not be valid in a fresh exercise.

According to them, the proceedings by the ECP were a kind of suo motu, and to carry them forward it issued notices to the competing candidates and regional election commissioner and district RO.

Besides relying on Article 218(3) of the Constitution, the ECP also based its ruling on Section 9(1) of the Elections Act, 2017, which states that if, “from facts apparent on the face of the record and after such enquiry as it may deem necessary, the ECP is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for by-elections.”