A three-member bench of the Supreme Court on Monday overturned a Lahore High Court (LHC) ruling declaring a recount of votes in three National Assembly constituencies null and void, enabling three Pakistan Muslim League (Nawaz) candidates to claim victory over their Pakistan Tehreek-e-Insaf (PTI) rivals.
Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the verdict was issued by a majority of 2-1 on pleas filed by the PMLN leaders, with Justice Aqeel Abbasi dissenting against the decision. The ruling directly benefits Zulfikar Ahmed of NA-79 (Gujranwala); Azhar Qayyum Nahra of NA-81 (Gujranwala) and Abdul Rehman Khan Kanju of NA-154 (Lodhran), all members of the PMLN.
The three seats in contention were won by three PTI-backed independent candidates—Ehsanullah Virk (NA-79); Bilal Ejaz (NA-81); Rana Faraz Noon (NA-154)—in the Feb. 8 elections. Subsequently, their PMLN rivals had approached the Election Commission of Pakistan (ECP) seeking a recount of votes. Following the recount, the ECP had declared the PMLN the victors. Resultantly, the PTI-backed independents challenged the ECP decision before the LHC, which rejected the ECP notification and reinstated the independent candidates as members of the house.
The PMLN members then challenged the LHC order before the Supreme Court. The LHC verdict set aside by the apex court had held that the ECP notification had erred in law while directing a recount of votes after the conclusion of consolidation proceedings, in violation of Section 95(6) of the Elections Act 2017. The Supreme Court judgment declaring the LHC ruling null and void emphasized the ECP was a constitutional body and its chairman and members were entitled to respect.
It observed that some LHC judges had lost sight of this and passed derisive remarks during proceedings. The CJP observed that every constitutional body and constitutional office holder and, in fact, everyone deserves courtesy and respect. “Institutions gain in stature when they act respectfully,” he remarked.
The ruling cited Section 95(5) of the Elections Act, which stipulates that when the margin of victory between the returned candidate and the runner-up was less than five percent of the total votes polled in the constituency, the returning officer would recount the ballot papers of one or more polling stations if a request to do so were made before the commencement of consolidation. The judgment noted that the margin of victory between the returned candidates and the runners-up was less than the stipulated percentile/number.
While the recount requests were submitted on Feb. 8, the independents had argued that consolidation proceedings had already commenced or concluded when the ECP received the applications. As such, they had argued before the LHC, the recount was in violation of law.
The apex court ruling also noted that a returning officer had informed the ECP that while he had received an application for recount prior to consolidation, he could not entertain it because a large number of political workers had gathered outside his office, worsening the law and order situation. Consequently, he said, he had dismissed the application.
The majority judgment held that ROs cannot surrender their powers to mob rule, nor could they forego their statutory duty to hold a recount. “If this is accepted, it would create a very dangerous precedent and render the law regarding recounting meaningless by those resorting to lawlessness,” it observed, adding this would also deprive the candidate seeking recount of this statutory right/remedy.
Additionally, read the judgment, the LHC’s judgment could only be invoked under Article 199 of the Constitution if a petitioner were an ‘aggrieved’ person, adding it was not clear how anyone could be stated to be aggrieved if the ballot papers were recounted.
“I am of the opinion that the impugned judgments/orders passed by the LHC in the aforesaid Writ Petitions do not suffer from any factual error or legal infirmity, therefore, do not require any interference by this Court, under Article 185(3) of the Constitution. Accordingly, the above civil petitions are dismissed and leave to appeal refused,” read the dissenting note filed by Justice Abbasi. He stressed that recounting could only be done before the conclusion of consolidation proceedings and not afterwards, as had been done in these cases.