Civil Petition No. 4682 of 2017
3.
3
The learned counsel submits that, there is no specific provision in
the law which enables a re-poll to be ordered by the Election
Commission; no notice was given by the Election Commission to the
petitioners before it issued the said notification; no case for re-poll was
made out; and the results formulated by the Presiding Officer could be
used for tabulating the votes that had been polled.
4.
We shall first examine the legal objection taken by the learned
counsel that the Election Commission did not have power to order repoll. This Court in a recent judgment (announced on May 8, 2018) in the
case of Malik Ameer Haider Sangha v Mrs. Sumaira Malik (CP No.
3122/2017) had examined the constitutional provisions governing the
Commission and its duties, and we reproduce the relevant portions from
it hereunder:
“10. Article 222 of the Constitution enables the
concerned legislature to make laws in respect of
election matters, however, this Article concludes by
stipulating that, “no law shall have the effect of
taking away or abridging any of the powers of the
Commissioner or
the Election Commission.”
Therefore, we need to examine the powers of the
Election Commission. The Election Commission is
required to hold local government elections (Articles
140A and 219(d) of the Constitution) and to
organize and conduct them by making “such
arrangements as are necessary to ensure that
elections are conducted honestly, justly, fairly and in
accordance with law, and that corrupt practices are
guarded
against”
(Article
218(3)
of
the
Constitution). The powers of the Election
Commission which are mentioned in the
Constitution neither stipulate nor require nor are
dependant on the legislature granting, amongst
others, specific powers to the Election Commission
to order a re-poll.” (from paragraph 10)
After setting out the constitutional provisions regarding the
Election Commission the aforesaid judgment considered the powers of
the Election Commission, as under: