SC justifies rejection of petition challenging Khawaja Asif’s electionPakistan
ISLAMABAD: The Supreme Court has held that the will of the electorate should never be interfered with rather should be respected unless irrefutable evidence is available to show that the elections have been systematically rigged by a candidate through the use of illegal or corrupt practice.
“In a democratic State, free, fair and transparent elections are sine qua non (an essential condition) for the success of the system,” Justice Ijazul Ahsan observed in a 20-page verdict to explain reasons why it rejected a petition on Nov 10, challenging the election of Defence Minister Khawaja Mohammad Asif from National Assembly constituency NA-110 (Sialkot).
A three-judge Supreme Court bench comprising Chief Justice Anwar Zaheer Jamali, Justice Amir Hani Muslim and Justice Ahsan had heard the petitions of Pakistan Tehreek-i-Insaf (PTI) candidate Usman Dar and Arshad Mehmood Baggu challenging the April 25, 2014, order of the Election Tribunal Lahore which had dismissed the election petition.
The constituency NA-110 Sialkot is one of the four constituencies apart from NA-125 Lahore, NA-122 Lahore, and NA-154 Lodhran, which remained at the centre of attack of the PTI leadership in their campaign to establish massive rigging in the 2013 elections and for which different election petitions were instituted seeking re-elections in the respective constituencies.
In the judgement, Justice Ahsan observed that over the past many elections, there have been allegations of pre-poll rigging and the use of illegal and corrupt practices during the process of polling.
Such allegations should have resulted in significant changes in the relevant laws as well as the Election Commission of Pakistan’s (ECP) protocols to address such concerns, the verdict said.
It appreciated the constitution of a bi-partisan Parliamentary Committee that was devising recommendations for electoral reforms in the country.
The court also recalled the three-judge Supreme Court inquiry commission headed by then chief justice Nasirul Mulk, constituted to inquire into the allegations of rigging in the 2013 general elections.
In its final report of July 22, 2015, the judgement said, the commission had pointed out shortcomings in the system and had made recommendations to improve the same.
Unfortunately, the court regretted, no substantial steps had so far been taken to address this very important and serious issue which had the potential to threaten the roots of the democratic process and the confidence of the electorate as well as the candidates in the electoral process.
“This court is sanguine (optimistic) that the executive and the legislature will, without further delay, take all necessary steps to fulfill their commitment of electoral reforms that satisfy the mandate of free, fair and transparent elections as enshrined in Article 218(3) of the Constitution,” Justice Ahsan observed.
Referring to the allegations of wrongdoings in the elections, the judgement explained that even if there may have been negligence or inefficiency on the part of the election staff on the election day, such acts/omissions did not occur on account of any act of Khawaja Asif, did not materially affect the result of the election and did not substantially contribute to Usman Dar’s loss.
It is a settled law that the election petitioner who alleges the use of illegal or corrupt practices or rigging has to establish his case on the same standard of proof as a criminal case, i.e. beyond reasonable doubt.
Citing the 1957 Mohammad Saeed versus Election Petitions Tribunal West Pakistan case, the verdict stated that a charge of a corrupt practice was a quasi-criminal charge and as the tribunal stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence on the principle applicable to the trial of criminal charges.
“One such principle is that in case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person,” the judgement said.
“As already discussed, the quality and nature of evidence produced before the tribunal fell substantially short of the requirements consistently set by this court in matters of this nature,” the judgement said.
Published in Dawn, December 11th, 2016