In a major relief for the ruling Pakistan Muslim League-Nawaz (PML-N), the Supreme Court Monday overturned a decision of the Lahore High Court (LHC), wherein the latter had declared the recounting of votes in three National Assembly constituencies and a provincial assembly constituency as null and void.
The top court's verdict noted that judges of the high court had entertained petitions in the case without considering the law, and for adopting harsh language against heads of constitutional bodies.
A three-judge Supreme Court bench headed by Chief Justice Qazi Faez Isa announced its reserved judgment on Monday. The judgment, which was two to one, favored PML-N candidates.
The decision pertains to the recount of votes in different polling stations in three National Assembly constituencies, including NA-154 Lodhran, NA-81, and NA-79, the constituencies of Gujranwala, and one provincial assembly constituency, PP-133 Nankana.
In its verdict, the LHC suspended the victory notifications of the four PML-N candidates, Abdul Rehman Kanju (NA-154), Abdul Qayyum Nahara (NA-81), Zulfiqar Ahmed (NA-79), and Rana Muhammad Arshad (PP-133).
Following the SC's ruling, PML-N members Azhar Qayum Nahra, Abdul Rehman Kanju, and Zulfiqar Ahmed were reinstated as National Assembly members and declared returned candidates following the recounting of votes.
The judgment stated that, regarding the contention of the contesting respondents, the consolidation of results had already taken place, and no evidence was provided to show that this was done pursuant to the law.
"Section 95(1) of the Elections Act requires the Returning Officer to give to all contesting candidates and to their election agents 'a notice in writing of the day, time and place fixed for the consolidation of the results'," the top court's verdict read.
"The contesting respondents, who had filed the petitions in the high court, did not produce the requisite notices given by the Returning Officer, nor did they produce them before this court," the top court held.
"When the petitioners allege that the notices were not issued, it cannot be assumed that the requisite notices regarding consolidation had been given, as stated by the contesting respondents."
The majority judgment, authored by Chief Justice Isa, observed that the counting and recounting ballot papers was not a judicial or even a quasi-judicial task; rather, it was an administrative-ministerial act.
"The only prerequisite to undertake it is for the returning officer to simply determine the percentile/numerical difference between the first two candidates upon receipt of an application requesting a recount," it read.
"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."
The top court further observed that the 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 does not do an honest recount or does not do the recount per the law, then the affected party has remedies available. Depending upon the particular facts of the case, this could be by approaching the commission or filing an election petition before the Election Tribunal, constituted under Article 225 of the Constitution."
Thereafter, the jurisdiction of the Supreme Court could also be invoked, it added.
The top court has observed that judges of the high court overlooked constitutional preconditions before exercising jurisdiction under Article 199 of the Constitution, which were that the petitioner must be aggrieved and must not have other adequate remedies; on both these counts, the writ petitions were not maintainable.
"The learned judges of the High Court also allowed the writ petitions without considering the law, which had been interpreted and explained in the cited precedents of this court, particularly of the larger four and five-member benches, respectively, in the cases of Javaid Hashmi, Ghulam Mustafa Jatoi and Aftab Shahban Mirani (above)."
"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'.
The contesting respondents, who had invoked the jurisdiction of the high court, could not be considered to be aggrieved by the administrative-ministerial act of recounting. Moreover, they had other adequate remedy," the verdict read.
"Therefore, the two prerequisites (aggrieved person and absence of adequate remedy) necessary to invoke Article 199 were not met. The commission was also not [coram non judice] nor lacked jurisdiction in ordering recount."
Chief Justice Isa has observed that the Constitution has bestowed upon the commission and not on the High Courts the duty to conduct elections per the 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," the verdict held.
"Needless to say, every learned judge of the High Court must abide by the decision of this court which 'decides a question of law or is based upon or enunciates a principle of law' as stipulated in Article 189 of the Constitution, however, the cited decisions of this Court were either misinterpreted or not considered."
CJP Isa said they had undertaken a comprehensive view of the verdict issued by the high court before deciding the matter.
"We have considered these cases from a number of different perspectives, and from all of them, the impugned judgments of the high court cannot be sustained. Therefore, for the aforesaid reasons, these petitions are converted into appeals and allowed by setting aside the impugned judgments and dismissing the writ petitions filed before the high court, but with no order as to costs."
Chief Justice Isa further emphasised that the ECP is a constitutional body, and its chairman and members are entitled to respect from members of other constitutional bodies.
Unfortunately, at places, some judges of the high court lost sight of this and made derisive remarks, observed the chief justice, adding that every constitutional body and constitutional office holder, in fact everyone, is deserving of courtesy and respect. Institutions gain in stature when they act respectfully.