ISLAMABAD - The demand of PTI Chief Imran Khan to get thumb verification of polled votes in four Punjab-based NA constituencies in last year’s general elections would not bear fruit for being illegal and unconstitutional.
Background discussions and interviews with parliamentarians as well as constitutional experts suggest that no other constitutional authority including the higher judiciary, the Chief Executive and even the Election Commission of Pakistan can interfere into the working of the Election Tribunals.
Sources are of the view that Imran Khan should trust the lawful Election Tribunals and wait for their verdicts, as no pressure tactic would work to disrupt the proceedings of the election tribunals.
“This is what the Prime Minister Sharif had personally conveyed to Imran Khan and that is exactly the position of the Election Commission on the subject matter”, a PML-N senior leader told The Nation requesting not to be named.
Another source privy to these developments maintained that Election Commission has no mandate whatsoever to influence the working of the Election Tribunals. The sources further said that the acting Chief Election Commissioner Justice Nasirul Mulk, who is going to assume the office of Chief Justice of Pakistan next month, did not move on the matter essentially there is no legal or constitutional authority except the Election Tribunals to handle such complaints.
According to the law, the Election Commission can only look into the elections related complains within 60 days of the election result when names of the winner is declared in the official gazette but it does not finally dispose of such a complaint within this period, the election of such contestant will be deemed to have become final, subject to a decision of a tribunal.
Therefore, the Election Commission of Pakistan (ECP) or the government, are not empowered to order rechecking, recounting or verification of any poll related documents to ascertain their authenticity.
So according to the law and the Constitution, the Election Tribunals could only order verification of the votes and their recounting. The Section 46 of the Representation of Peoples Act (ROPA) 1976 envisages that a tribunal may order inspection of any counted ballot papers or opening of packets of counterfoils and certificates.
The law says that such an order may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the concerned tribunal may think expedient. In making and carrying into effect an order for the inspection of counted ballot papers, care will be taken that no vote will be disclosed until it has been held by the tribunal to be invalid.
Where such an order is passed, the production by the ECP of any document in such manner as may be directed will be conclusive evidence that the document relates to that specific election. Any endorsement on any ballot papers or their packet papers or documents so made available will be prima facie evidence that the ballots or documents are what the endorsement states them to be.
The National Database & Registration Authority (Nadra), which has expressed its readiness to do verification of thumb impressions, will come into play to do this job only if an Election Tribunal ordered so.
It can’t do so on its own or on the direction of the government. The ECP also has no authority to seek such authentication under the law. Any person aggrieved by the decision of a tribunal may, within 30 days, appeal to the Supreme Court.
Under Section 103AA of ROPA, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the ECP is satisfied that, by reason of grave illegalities or violation of the ROPA or the rules, the poll in any constituency ought to be declared void, it may make a declaration accordingly and order re-election. While exercising this power, the ECP will be deemed to be a tribunal to which an election petition has been presented.