NA 122: Should PTI Demand Legal Action Against Election Staff?

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NA 122: Should PTI Demand Legal Action Against Election Staff?

After examining the judgment of the Tribunal in NA 122 case and the relevant provisions of law, I have determined whether Pakistan Tehrik e Insaf should demand legal action against the election employees for their failure to conduct election fairly, justly, honestly and in accordance with law or not.

Representation of the People’s Act, 1976  (ROPA) not only provides different offences falling within ambit of illegal and corrupt practices by certain persons during an election but also provides penalty and procedure of assessment of such offences.

Details of offences related to the case in hand are personation, breach of official duties, etc. in terms of illegal practice and corrupt practice, the details of which are provided below.

Personation:

Sec. 78(2) of ROPA provides that a person is guilty of corrupt practice if he is guilty of bribery, personation or undue influence.

Sec. 80 provides that a person is guilty of personation if he votes or applies for a ballot paper for voting as some other person whether some other person is living or dead or factious.

Under sec. 80-A, he is liable to be punished with the imprisonment which may extent to 6 months or fine of 5,000 or with both.

While in terms of sec. 83 of ROPA, a person is guilty of “illegal practice” if;

  1. Votes or apply for a ballot paper for voting at an election knowing that he is not qualified for, or is disqualified from voting.
  2. Votes or apply for a ballot paper for voting more than once in the same polling station;

The above said offence of personation is established by the judgment of the Tribunal in the following paras;

  1. “Unfortunately, ballot papers issued against above said 255 used counterfoils to the impersonators, who cast votes through impersonation had been counted as validly polled votes in favor of the contesting candidates. I exclude them from consideration with an observation that voting through impersonation described as duplicate voting by NADRA cannot be and should not be approved of”. (Para-16).
  2. The scanning report Ex.TW-4/A by NADRA has certified that 570 electors of another constituency succeeded to cast vote at the polling stations of NA-122, Lahore. (Para-17).

Breaches of official duty:

Under Sec. 91, a Returning Officer, ARO, PO, APO or any other person employed, willfully and without reasonable cause, commits breach of any such official duty by act or omission is liable to be punished.

In the judgment, the following acts and omissions in terms of breaches of official duty of the election staff are pointed out.

According to scanning report, Ex.TW-4/A by NADRA, 2862 used counterfoils had CNIC numbers with missing digits. Likewise, the said statement further revealed that CNIC numbers of the electors on 3440 used counterfoils were not readable. Leaving aside as to whether the unreadable CNIC numbers or the CNIC numbers with missing digit given in 6302 used counterfoils were correct or incorrect, it can be safely said that the members of polling staff, who rioted down unreadable CNIC numbers and CNIC numbers with missing digits in the used counterfoils failed to discharge their legal obligation and thus nullified the voting procedure laid down in section 33(2) (e) and (3) (a) of the ROPA, 1976. (Para-11).

The Presiding Officers and the Returning Officer counted above said 1380 ballot papers towards the vote account of the contesting candidates. These ballot papers were without any origin. The inspection report, Ex.TW-1/A drawn up by the Commission / TW-1 as a result of inspection of record in presence of representatives of the petitioner and the returned candidate has established that 1380 ballot papers treated and counted as validly polled votes had never been issued by the members of polling staff. The voting procedure laid down by section 33 of the ROPA, 1976 is to the effect that the Presiding Officer shall record on the counterfoil of the ballot paper, the number of the elector as per electoral roll and the number of national identity card of the elector after having obtained his thumb impression on it. 1380 ballot papers in question do not qualify the above said legal test. I, therefore, safely conclude without any fear of contradiction that 1380 so called ballot papers counted as validly polled ballot papers are in fact waste papers / fake ballot papers. (Para-14).

  • This is a matter of record that 1270 ballot papers in question had been issued to the electors. On close of the poll, 1270 ballot papers were neither found from the ballot boxes nor counted towards the vote account of the contesting candidates. These ballot papers were also not found from the election bags by the Commission.

The Tribunal has also taken the missing of ballot papers as mischief, which is also a criminal offence. (Para-14).

The Presiding Officers and the Returning Officer excluded above said 411 votes from the count and showed them as rejected votes. On opening the packets of rejected votes, the Commission (TW-1) did not find 411 votes / ballot papers, which had been shown as rejected by the Presiding Officers and the Returning Officer in their respective statements of the count in form XIV and form XVI. The available record does not tell as to what happened with above said 411 ballot papers. Had the Presiding Officers and the Returning Officer rejected 411 ballot papers in question as they claimed through their respective statements in form XIV and form XVI, the same would have been found from the packets of rejected votes by the Commission / TW-1.

  1. Voting Procedure.—

(2) Before a ballot paper is issued to an elector—

(e) the Presiding Officer shall record on the counterfoil of the ballot paper the number Election Petition No.315/2013 of the elector on the electoral roll 2 [the number of National Identity Card of the elector], stamp it with the official mark, [sign it and obtain on] it the thumb impression of the elector.

  1. Voting Procedure.—

(3) 1[A ballot paper shall not be issued to a person who—

(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973) 2[ or issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000)].

The scheme of the election laws would show that the only objective to record CNIC number of the elector on the counterfoil was to establish his identity on record and to avoid the possibility of voting through impersonation. The members of polling staff defeated the above said objective of the statutory provisions of law reproduced above by writing down unreadable CNIC numbers and CNIC numbers with missing digits in 6302 used counterfoils.

A perusal of the inspection report, Ex.TW-1/A would show that the Commission / TW-1 found a number of irregularities committed by the Presiding Officers and the Returning Officer qua the rejected votes. (Para-13).

In Para 20, Tribunal has mentioned the polling stations where polling bags were found unsealed. The members of polling staff and the Returning Officer were bound to deposit sealed election bags in the Treasury to ensure safe custody of the election record. (Para-20).

  • Used Electoral Roll of six polling stations No.18, 27, 44, 81, 90 and 113 were not found from the election bags. (Para-21).
  • On inspection of the election record in presence of representative of this Election Tribunal, NADRA pointed out through its report, Ex.TW-4/A that 313 counterfoils without any serial number and 2 counterfoils with hand written serial numbers had been used at different polling stations. (Para-22).
  • The members of polling staff failed to stamp and sign the used counterfoils in a sizeable number and the Tribunal observed that the that the polling staff did not perform the legal obligations carefully.( Para 23).
  • Thumb impressions of the electors on 93,852 used counterfoils could not be processed through AFIS because of poor quality of fingerprints of the voters affixed on them which nullified and frustrated the objective of the statutory provisions of sec. 33. (Para 24).
  • The election machinery completely and miserably failed to comply with the provisions of the Representation of the People Act, 1976 while conducting the Election 2013 from Constituency No.NA-122, Lahore-V. (Para-29).

Failure  of Returning Officer;

In Para 13 of the judgment, Honorable Tribunal has observed as under;

A perusal of the inspection report, Ex.TW-1/A would show that the Commission / TW-1 found a number of irregularities committed by the Presiding Officers and the Returning Officer qua the rejected votes”.

Consolidation of results— Sec.39 (3) requires;

“Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favor of the contesting candidate for whom the vote has been cast thereby”.

In Para 12, Honorable Tribunal has observed;

“Had the Returning Officer consolidated the results in terms of section 39(3) of the ROPA, 1976, he would not have mentioned above said 411 votes in question as rejected ones while preparing the consolidated statement of the results of the count in form XVI. A combined examination of the statements of the count in form XIV and the consolidated statement in form XVI regarding the polling stations given in the table would provide a valid basis to conclude that the Returning Officer did not examine the rejected votes while consolidating the results and drew up consolidated statement in form XVI in line with the statements of the count in form XIV mechanically. Without seeing and examining the said missing 411 ballot papers, it cannot be said with certainty as to whether the same are validly polled votes or rejected votes. I, therefore, safely conclude that the Returning Officer did not discharge his legal obligation in terms of section 39(3) of the ROPA, 1976 while consolidating the results.

Therefore, this study of the judgment of the Tribunal and the relevant provisions of law, indicates that the Election Commission badly failed to conduct elections in NA 122 in accordance with law, the election staff has been found guilty of illegal practices and of corrupt practices therefore, the demand of legal action against the election staff including Returning Officer by Pakistan Tehrik-e-Insaf is a reasonable demand.

 

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Farrukh Dall

The writer is a politician, lawyer and partner at Trek Law, an Islamabad based law firm. He is also the Chairperson at Read Pakistan and tweets as @farrukhdall



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