SC upholds ECP order in vote recounting case

Paves way for PML-N to get three more NA, one PA seats

ISLAMABAD:

In an interesting development, the Supreme Court has set aside—by a majority vote—a Lahore High Court (LHC) order, allowing a recount of vote at three National Assembly and one Punjab Assembly constituencies as sought by the ruling PML-N's runner-up candidates.

In the February 8 general elections, PTI-supported candidates secured victories in NA-79 Gujranwala-1, NA-81 Gujranwala-3, PP-133 Nankana Sahib-2, and NA-154 Lodhran-1 constituencies.

Runner-up candidates from the PML-N filed requests with the Election Commission of Pakistan (ECP) for a recount of votes, applications that the ECP later approved.

The PTI backed candidates challenged this decision in the LHC, which accepted the writ petitions of the returned candidates and annulled the ECP's decision.

This LHC ruling was then challenged in the Supreme Court whose three-member bench led by Chief Justice of Pakistan (CJ) Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Aqeel Ahmed Abbasi heard the matter.

The bench on Monday unveiled the verdict, allowing by a majority vote of 2 to 1 the civil petitions filed by the PML-N candidates.

The majority order authored by CJ Qazi Faez Isa noted that a high court's jurisdiction under Article 199 of the Constitution can only be invoked if a petitioner is an 'aggrieved' person.

"It is not understandable how anyone can be stated to be aggrieved if the ballot papers are recounted. Grievance against the administrative-ministerial act of recounting of ballot papers is also not envisaged in Article 199.

"If a returning officer (RO) does not do an honest recount or does not do the recount in accordance with the law, then the affected party has available remedies.

"Depending upon the particular facts of the case this could be by approaching the Commission (ECP) or filing an election petition before an Election Tribunal, constituted under Article 225 of the Constitution. Thereafter, the jurisdiction of this court can also be invoked."

According to the majority order, the LHC allowed the independent candidates writ petitions without considering the law as interpreted and explained in the Javaid Hashmi, Ghulam Mustafa Jatoi and Aftab Shahban Mirani cases.

"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.'"

It said the contesting respondents who had invoked the jurisdiction of the LHC could not be considered to be aggrieved by the administrative-ministerial act of recounting.

"Moreover, they had other adequate remedies. Therefore, the two prerequisites (aggrieved person and absence of adequate remedy) necessary to invoke Article 199 were not met."

According to the order, the ECP was also not coram non judice nor lacked jurisdiction in ordering recount, adding that the Constitution has bestowed on the ECP (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," it added.

The order stated that the counting and the recounting of ballot papers is not a judicial or even a quasi-judicial act. It is an administrative-ministerial act and the only prerequisite to undertake it is for the RO to simply determine the percentile/numerical difference between the first two candidates, upon receipt of an application requesting recount.

"In these cases, it is admitted that applications seeking recount were submitted in respect of all four constituencies and that the difference in the margin of victory between the first two candidates was well within the stipulated percentile/number as prescribed in section 95(5) of the Elections Act," it said.

Need to respect the ECP

The order noted that ECP is a constitutional body and its chairman and members are entitled to respect.

"Unfortunately, at places some learned judges of the high court lost sight of this and passed derisive remarks. Every constitutional body and constitutional office holder, in fact everyone, is deserving of courtesy and respect. Institutions gain in stature when they act respectfully," it added.

The dissenting note

Taking exception to the majority order, Justice Aqeel Ahmed Abbasi noted that in all the petitions, admittedly, the process of conducting the election was completed as the final results were consolidated and the names of the returned candidates were published in the official gazette.

"Therefore, any dispute relating to the election, thereafter, including recount of votes under Section 95(5) of the Election Act could not have been referred or taken cognizance by the ECP under the purported exercise under Article 218(3) of the Constitution read with Section 8 of the Election Act."

He noted that learned judges of the LHC neither entertained nor decided any election petition or dispute as contemplated under the Election Act.

"On the contrary, they decided a fundamental question posed for determination relating to the scope and extent of the jurisdiction vested in the Commission, after final consolidation of the results and issuance of notification of the returned candidate under Section 98 of the Election Act, and also the forum, wherein, the remedy could have been sought in respect of dispute relating to recount of the ballot papers under Section 95 of the Election Act.

"Therefore, any objection with regard to maintainability of the constitutional petition before the LHC, while referring to provision of Article 225 of the Constitution, is misconceived," he added.

Implications

Formal additional attorney general Waqar Rana, who was assisting PTI's Hamid Khan Advocate, commented that the judgement is going to have profound effect on jurisprudence on election laws.

"It will also have a strong effect on the composition of National Assembly and Provincial Assemblies as now all powerful ECP will have its way without the fear of judicial oversight."

Rana said in the election process—starting with the election schedule and concluding with the notification of winning candidates—the interregnum was susceptible to judicial review on three grounds.

"The majority judgement misapplied Javed Hashmi's case. Secondly, at least in one case there are factual errors. In CPLA 157/2024, as per the petitioner's own case, its application before the ECP was an independent application and not an appeal against an order of RO.

"There is a clear contradiction in the stance of RO and its benefit should have gone to the returned candidate. Thirdly, the provisions of section 95 have been misinterpreted and the legal history and legislative changes made have also been wrongly interpreted.

"Fourthly, in view of the powerful dissenting note it also shows that the majority judgment may not be a correct view," he said, adding that the ECP is a constitutional body but it is not above the Constitution.