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Safeguarding democracy

May 30, 2013

RECENTLY, the Election Commission of Pakistan appointed certain retired district and session judges as election tribunals. They have been taken out of retirement, on contract basis, for one year. Their appointments are terminable on 30 days’ notice without any reasons.

Following allegations of rigging and demands for results to be nullified, it is important to remember that the tribunals (appointed under Section 57 of the Representation of Peoples Act 1976 and Article 225 and 219 of the Constitution) are the sole legal forum for addressing such disputes. Therefore, it is crucial that these tribunals be of impeccable integrity and on sound legal footing. As presently constituted however, it is doubtful that they are constitutional.

Article 175 states that the judiciary shall be separated from the executive. This one line has created a rich body of jurisprudence that is settled and in line with common sense. The judicial function must be separated from the executive to ensure an impartial and uninfluenced judiciary.

Safeguards essential to ensure the independence of judicial function are at the core of the Constitution. That is why the appointment of judges is led by the judiciary and not the executive, why judges are not under the administrative and financial control of the executive, and why judges have a fixed retirement age. This is at the heart of the constitutional protection afforded to each Pakistani.

It is settled law that nobody can exercise judicial functions without the minimum safeguards mentioned above. Executive appointees cannot perform judicial functions. In Mehram Ali’s case (when the Supreme Court set aside anti-terrorist courts established by Nawaz Sharif’s government) the court stated that, “the Constitution only recognises such specific tribunals to share judicial powers with the courts… which have been specifically provided by the Constitution itself”. One such tribunal is the election tribunal. Do these appointments meet the criteria and safeguards of independence discussed above? No. Do they need to? Yes.

It could be argued that tribunals are created under a specific provision of the Constitution (Articles 219 and 225), therefore their process of appointment does not need to be the same as the appointment of judges under Article 175. Further, the Constitution does not explicitly state that these tribunals must follow the same procedures for appointment as judges — it simply states that the ECP shall appoint them.

However, it is clear these tribunals perform judicial functions. They appraise evidence, determine questions of fact and law, and appeals from their decisions are adjudicated by the Supreme Court. Once we are clear that these tribunals perform judicial functions can we dispute that they must employ the same safeguards as required of normal courts? The Supreme Court has already said that we cannot.

In a decision released on Jan 9, 2013 (Sh. Riaz-ul-Haq vs. Federation of Pakistan), the Supreme Court has said that the service tribunals (Article 212) perform judicial functions, therefore they are courts and all safeguards applicable to the exercise of judicial functions apply to them. By extension this should apply to the election tribunals as well.

Election tribunals, being courts and performing judicial functions, cannot be exempt from following the basic safeguards that ensure an independent judicial tribunal. The Constitution guarantees the right of access to justice, due process of law (Article 9) and the right to a fair trial (Article 10-A).

The basic safeguard to ensure a fair trial ie an independent forum cannot be violated regardless of the constitutional provision under which the body is established. Hence, the Constitution expects that these appointments will meet the safeguards necessary to ensure fairness, impartiality and independence. At present they do not.

A tribunal appointed on contract, for one year, that can be dismissed on 30 days’ notice without any cause fails almost every test of an independent tribunal free from undue influence and is therefore in violation of the fundamental rights mentioned above. Electoral malpractice goes to the heart of democracy. The tribunals deciding these matters must be free from such obvious and concerning defects. Successfully nullifying rigging is the most necessary service to our democracy. Yet this aspect is being ignored.

The Supreme Court that took suo motu notice of a slap by Waheeda Shah during a by-election should also take note of the numerous videos and pictures clearly showing unchecked electoral malpractice in this election. Certain TV anchors have belatedly done one show about it and then stopped. Some anchors have tweeted one thing while saying another on air.

The Human Rights Commission of Pakistan wants people to, in essence, get over it. The ECP is in self-congratulation mode. The caretaker government and the incoming one are silent. Let’s just be happy that elections happened, they seem to say.

Let’s not. In a democratic Pakistan it is in our interest to diagnose and eliminate rigging. The parties and the ECP should take the initiative. But if they do not, what could better fit the test of public importance and enforcement of fundamental rights that the Supreme Court needs to take notice?

So cautious have we been to not derail democracy, that even legitimate questions are being silenced by opinion-makers for fear of “upsetting the system”. Those raising allegations of rigging are being called sore losers. Those ignoring them are being called mature. It should be the opposite.

A mature democratic leadership would recognise that faith in this process is paramount and it would not arise by simply urging the young and disaffected to ‘get on with it’. Even if those protesting against rigging have other interests it is true that what they are asking for is good for democracy. This should be recognised, not brushed under the carpet.

The writer is a barrister at law.