The Election Tribunal has ordered re-polling in NA-125 and the PTI is taking the decision as a vindication of its stance of systematic rigging in the 2013 general elections, notwithstanding the fact that 39 petitions of its candidates have been rejected or dismissed by different tribunals; negating this impression. Against this, the PML (N) feels that the verdict of the tribunal lacks adequate justification for ordering the re-poll and consequently has decided to exercise its legal right of appeal against the decision in the Supreme Court of Pakistan.
It is a universal practice and norm of adjudication that the decisions are made strictly in conformity with the issues raised in the petition by the petitioners. In the case, the petitioner has prayed the tribunal to declare the election of the returned candidate as void, and declare him as returned candidate from NA-125 or order re-polling; contending that the polling scheme was not finalised until one day before the elections and that the returned candidate along with Mian Naseer, Yasin Sohail, their agents and the supporters, with active connivance and support of the Presiding Officers, Polling Officers and the Police, violated numerous provisions of the Representation Of Peoples Act 1976 (ROPA) with intent and purpose to manipulate the polls fraudulently to their benefit.
As is evident the pivot of the petition was that the election was stolen as a result of a conspiracy and collusion between the returned candidate and those who conducted the election. The tribunal therefore had to establish whether the claim made by the petitioner regarding conspiracy was true or not and then base his decision on those findings. An incisive look at the detailed judgment issued by the tribunal reveals that there is a complete disconnect between the prayer made by the petitioner and the basis on which the tribunal has ordered re-polling in the constituency. The judge of the tribunal in his judgment has clearly admitted “No evidence though is available on record that the returned candidate or any other candidate was responsible for the missing record, or even for invalid statements of count. We also have no evidence on record about any conspiracy or collusion or mala fides on the part of the DRO, the RO, the polling personnel and the returned candidate. No proof of any illegal gratification or undue influence is received against any member of the polling personnel, RO, DRO. But what is apparent, is that serious lapses and negligence was evident at every stage of conduct of elections”
This outright rejection of the claims of the petitioner would have been enough to dismiss the petition. Instead the learned judge ordered re-polling on the basis of reasons other than mentioned by the petitioner in his petition. The judge has made the decision in terms of section 70 of the ROPA which says “The tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election”. The judge has ordered re-polling on the drawn conclusion that the election was materially affected. The issue was not whether the election was materially affected or otherwise. The issue was that whether it was stolen through a conspiracy and collusion among the respondents mentioned in the petition or not.
The judge while drawing the conclusion in regards to election being materially affected has mostly relied on irregularities committed by the DRO, RO, Presiding officers and the polling staff which according to the judge constituted breach of different provision of the ROPA. For instance according to the judgment the RO breached section 9(2) of ROPA by not preparing the lists of polling personnel 15 days before the polling and getting it approved by the DRO as well as by changing the Presiding officers on the request of the petitioner 3-4 days before the elections. It is really interesting to note that it was the petitioner himself who actually influenced the RO to change the Presiding officers rather than the returned candidate and thus was equally responsible for this glaring irregularity and violation of section 9(2) of ROPA. That should have been a sufficient reason for dismissal of his petition.
The judgment says that the RO compiled the results on the basis of form XIV provided by the Presiding Officers without signatures and thumb impressions in contravention of section 38(9) of ROPA. He also violated section 39(6) of the Act by not recounting the ballot papers on the request of the candidates as well as failing to scrutinise all ballot papers excluded from the count. The judgment also talks of some missing record and attributes the phenomenon to the inability of the ECP to take the responsibility of preserving this record appropriately and instead leaving it to be handled by the treasury offices concerned who are under no legal obligation to do so. There is also mention of thumb impression not matching or being not verifiable by NADRA, which the judge himself concedes may be due to lack of proper training by the polling staff as how to obtain the impressions and probably the ink used being the reason for that. The judge has also recorded in his judgment that many of the complaints and objections could have been avoided with better planning, better professionalism and better devotion to duty.
What it means is that the irregularities and breach of provisions of ROPA was not intentional. It may be relevant to mention that the Commonwealth Observers group whose observations have also been referred to by the judge in his judgment, in their report though had mentioned some the irregularities and breach of certain electoral procedures but they declared the overall elections as transparent and free or rigging. The other thing is that the judge only on the basis of scrutiny of seven polling stations and the irregularities committed by the ROs and Presiding officers formed the opinion that it was the case in all other polling stations. That is jumping to the conclusion without examining the issue in its entirety and with reference to the contents of the petition. In the light of the foregoing facts the PML(N) rightly feels unsatisfied by the decision and very much has the right to use the option of appeal against it in the Supreme Court.