DURING most of last year, Pakistan was on the brink of a political and constitutional breakdown. Political violence appeared imminent, and military intervention seemed to be round the corner. With the issuance of the General Elections-2013 Inquiry Commission Ordinance, 2015 (‘Inquiry Commission’), such a constitutional meltdown seemed to have been avoided for the time being.

Four key players have played a critical role in preferring a constitutional settlement over meltdown — an army chief who could have taken over last year but did not; the Nawaz Sharif government which could have avoided forming such an inquiry commission, with unknown consequences especially since the PTI dharna had collapsed, but still did; the PTI which could have continued with its politics of agitation, bleeding and distracting the government without removing it but did not; and the Supreme Court, which like last year, could have avoided getting involved in such politically infested legal questions but still did. What do these events tell us about resolving, at times, irreconcilable political and institutional disputes with apparently no constitutional solutions?

Inquiry commission: Five key features of the inquiry commission law can be identified. Firstly, this judicial commission will “inquire into the organisation and conduct of the General Elections-2013”, and not individual election disputes between political rivals or individual constituencies. In short, it is the Election Commission, the returning officers and caretaker governments which are under scrutiny.

Secondly, the scope of inquiry is broad and deliberately vague — to examine whether the 2013 elections were impartial and fair, whether there was a systemic effort to manipulate and influence the election and whether the declared results give a “true and fair reflection of the mandate”.

Thirdly, even though this is a judicial commission comprising three Supreme Court judges, having vast powers of a civil and criminal court (powers of contempt and the power to examine any evidence and adopt any inquiry procedure necessary), this judicial commission is neither a court nor equivalent to any court nor will its finding be judicial findings that are binding on the government or the PTI. Nor is it in any way equivalent to the Supreme Court. It is an inquiry commission, which is labelled a judicial commission only because its members are sitting members of the judiciary, with maximum power to give a final report, after which the commission would be automatically dissolved.

Any findings by three Supreme Court judges probing poll rigging charges cannot be politically ignored.

Fourthly, the judicial commission has the power to form a special investigation team, which can include officers from the Inter-Services Intelligence and Military Intelligence. This is the real power of the judicial commission and the unknown factor in this political battle between political rivals (ie PML vs PTI) and institutional rivals (ie politicians vs military).

Fifthly, the judicial commission may not have any substantive legal and constitutional powers but its sociopolitical powers are immense. Any inquiry commission findings by three sitting Supreme Court judges cannot be politically ignored by anyone, especially since the final inquiry report under this law will have to be made public.

Questions of constitutionality: This inquiry commission is publicly being challenged on the ground of Article 225 of the Constitution, which lays down that “no election ... shall be called in question except by an election petition presented to such tribunal”. The challenge is simple — this inquiry commission is unconstitutional because it is calling in question elections without being an election tribunal.

But these objections are misplaced for the following reasons. Firstly, in terms of the ‘Muhammad Raza Hayat Hiraj judgment’, authored by Chief Justice Nasir-ul-Mulk himself, the term “called in question” in Article 225 is limited to “litigative challenges” ie judicial challenges which are binding and have binding legal consequences. On the other hand, an inquiry commission is not a court engaged in any “litigative challenge” nor will its final report be binding, or have binding legal consequences.

Secondly, under Section 9(2) of this law, anything done, or finding given, by the inquiry commission, shall not prejudice any case pending before the election tribunal or in any court or any orders passed by them. Therefore, there appears to be no conflict between Article 225 and this inquiry commission.

Problems, uncertainties and interest: Of course, there are problems and uncertainties in this law. To name a few: (a) this law being an ordinance will lapse after 120 days and may not be renewed by parliament; (b) such a huge task can never be finished within the time frame of 45 days, or anytime soon; (c) what will happen to the work done by the commission once the present chief justice retires in August 2015, if its final report is yet to be completed; (d) this law is vague as how this complicated and huge task of examining an entire election is to be achieved and (e) any findings by the inquiry commission may politicise the Supreme Court judges comprising the inquiry commission.

Moreover, the mere formation of this inquiry commission doesn’t mean that the political and institutional rivals have reconciled their interest. The army can use this opportunity, through the involvement of the ISI and MI in this inquiry, in continuing with its strategy of ‘permanent siege’ of the present civilian government. The PTI is hoping to use any substantive finding of election fraud in the inquiry report to completely de-legitimise the government. The latter will do everything in its power to delay and, if possible, subvert the conclusion of this commission so that it will ride out the remainder of its tenure.

But problems, uncertainties and interest should not blind us to the political achievement and constitutional innovation achieved. No political system can avoid political and constitutional contradictions and conflict; however, the Pakistani political and military elites have avoided a political and constitutional meltdown through dialogue and compromise even if they rigorously pursued their interests. Moreover, Supreme Court judges looking into politically infested legal disputes is constitutional umpiring although not desirable. In fact, in the political realities of Pakistan, the alternative unconstitutional umpires raising their unconstitutional fingers may be disastrous for Pakistan.

The writer is a lawyer.

Published in Dawn, April 18th, 2015

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