Currently, the system for resolution of election related disputes in Pakistan is rooted partly in law and partly in informal practices developed by the Election Commission of Pakistan (ECP). The legal basis of electoral dispute resolution has several gaps and does not provide for effective resolution of disputes at key stages of electoral process. Formal dispute resolution mechanisms are contained in the Constitution and the Representation of the People Act (ROPA), 1976. Informal mechanisms are derived from the ECP’s practices and are highly informal, often providing no effective remedy.
The current electoral laws do not provide a sound legal basis for effective electoral dispute resolution in key elements of the electoral process including the campaign, voter registration, and boundary delimitation. They allow for complaints against candidate nomination papers. Any person can challenge the eligibility of candidates to run for office. The Returning Officers (Ros) received and review nomination papers before being rejected or accepted. An acceptance or rejection may be challenged by filing an appeal to an Appellate Tribunal. An Appellate Tribunal consists of two or three judges of the high court, nominated by the Election Commission with approval of the President of Pakistan. Appeal against decisions of the Appellate Tribunals can be filed in the Supreme Court.
At the post-result stage, the constitution and ROPA provide that election results can be challenged only in one adjudicatory entity, an Election Tribunal. An Election Tribunal consists of a judge of the high court or legally can also of a person who qualifies to be a judge of the high court. The procedure for challenging election results via this avenue is set down by the Representation of the People Act and the Civil Procedure Code. Election Tribunals are further provided for in the Representation of the People Act with substantial connection to the ECP.
During the period between polling day and the announcement of official results, the law provides that the ECP may receive a request for recount. The law also allows for a complaint, or application, to be filed during this period to declare the poll void on account of grave illegalities or violation of the provisions of the Act.
The right to file applications and request a recount is restricted to candidates and their polling agents only. An application to declare a poll void under section 103AA of ROPA requires the ECP to hold a summary proceeding to determine whether “grave illegalities” and “violation of the provisions” of the Act occurred during the election. Once a determination by the Commission is made the applicant may appeal this determination to the Supreme Court.
The ECP has also developed various informal dispute handling mechanisms as contained in the 2008 ECP Complaints Handbook. The Handbook states that the ECP receives complaints related to the campaign at any point in the organizational structure for alleged violations of the law during the pre-poll period. Any person can file this type of pre-poll complaint if they believe that an electoral offence has been committed. Complaints can be filed in various formats, including letters, faxes, phone calls, emails and a complaint form made available by ECP.
On Polling Day, the complaints can be filed with election officials of the matter may be reported to the concerned police station to register a vase against the alleged violators of the penal code. No official procedure exists for the resolution of these complaints.
Election Dispute Resolution: Analysis of Pakistan’s Mechanisms prior to the 2013 Parliamentary Elections, Democracy Reporting International, 2013