Changing goalposts

09 Sep 2014


The writer is an attorney-at-law.
The writer is an attorney-at-law.

THE Pakistan Tehreek-i-Insaf has recently submitted a set of proposals to the PML-N for resolving the ongoing political impasse. Although it has been contended that the proposals make contradictory claims, another aspect requires attention.

Under the Representation of the People Act (Ropa), 1976, an election can be declared void if the tribunal is satisfied that the results have been materially affected by a violation of the provisions of Ropa or the prevalence of extensive corrupt or illegal practices. Loosely put, a result would be seen to be ‘materially affected’ if the acts of rigging were to change the outcome of the election. The wisdom behind such a requirement is to avoid re-election in situations where, although rigging took place, the actual number of rigged votes was not sufficient to change the overall result.

Claims of poll manipulations are to be adjudged by election tribunals that in doing so allow detailed evidence to be examined and cross-examined so as to determine whether the alleged rigging was of a nature that required the annulment of polls.

However, if the PTI proposal is accepted, the above-mentioned safeguards may no longer remain in place. In the proposal, the PTI would choose 30, or less, constituencies of the National Assembly for investigation by a judicial commission. If the selected constituencies show ‘rigging’, as defined by the PTI, the election process in over 270 constituencies of the National Assembly would be declared void.

The PTI seeks to define the manner in which the ‘rigged’ constituencies will be probed.

Needless to say, action on the proposal would have serious consequences for the country, with issues arising with regard to the objectivity of the sample chosen, and the question of whether it could be considered representative of the happenings in various constituencies.

Other than that, the PTI also seeks to define the manner in which the judicial commission will investigate such constituencies and the standard of evidence that will be acceptable.

It proposes that the judicial commission will carry out summary proceedings, without thorough and detailed evaluation of evidence, and that circumstantial evidence, which may not be considered otherwise, would also be factored in when it comes to its decision.

Shockingly, the PTI’s allegations shall be ‘deemed’ to be ipso facto proven, without substantiating actual fraud, if complainants are simply able to show, on the face of it, that there has been an effect on the transparency, integrity, and credibility of the polls, amongst other things, in the constituencies investigated.

Allegations of massive rigging would also be deemed to have been proved by simply pointing to votes unverified due to substandard magnetic ink; constituencies where a high number of votes were rejected as invalid; and by pointing to constituencies where irregularities occurred but could not be shown to have been intentionally undertaken against the PTI or in favour of any returning candidate.

The test of the election being ‘materially affected’ has seemingly also been done away with, or at the very least, diluted. On the face of it, the ‘rigging’ test, as per the PTI, does not take into account that elections in a constituency remain valid even if irregularities have been insignificant. The position seems to be in line with party policy that has long considered even an iota of rigging in one constituency as conclusive proof of rigging throughout the country.

However, the more worrying aspect of the proposal is the attempt to judge the 2013 elections on the basis of laws which have yet to be enacted. In effect, the PTI seeks to scrutinise the elections on the basis of a yardstick not in existence in the year 2013, and in stark contrast to the existing standards and legal framework agreed upon by all parties that participated in the polls. In a nutshell, if the new yardstick for free and fair elections is applied retrospectively, an election could now be undone for things which may be illegal in terms of the new laws, but legal by virtue of the law that was in existence in 2013.

In conclusion, the proposals appear to be an indictment of the PTI’s claims that it has sufficient evidence to prove rigging. In perhaps realising that it may not be able to show rigging in the presence of the existing electoral laws, the PTI now appears to be trying to create a supra election structure that would investigate constituencies of its choosing, consider evidence of its liking, and render decisions of its making.

If such a judicial commission is set up, the allegedly rigged 2013 elections shall be investigated by a body which in and of itself would be severely compromised, restricted, and ironically, ‘rigged’.

The writer is an attorney-at-law.

Twitter: @basilnabi

Published in Dawn, September 9th , 2014