A road to nowhere

Published March 30, 2015
The writer is a lawyer.
The writer is a lawyer.

The PML-N and the Pakistan Tehreek-i-Insaf (PTI) have finally agreed to form a judicial commission to probe the 2013 elections and determine three things: were they conducted impartially, fairly and justly in accordance with law; were they manipulated by systematic design; and were the results a fair reflection of public mandate.

If there was ever a commission to be formed likely to do nothing other than drag the judiciary into the political thicket and subject its findings to the ignominy of an emotive media trial, it is this.

Read: Govt agrees on judicial commission to probe election rigging

Let us focus on the legal issues that bedevil this enterprise. Our Constitution conceives of no mechanism to declare illegal the collective result of an election.

Article 225 identifies the manner and mode in which elections can be brought into question: through an election petition presented to an election tribunal as prescribed in the Representation of Peoples Act, 1976.

Thus, without amending Article 225 and/or the 1976 Act, election results can’t be “called in question” by any commission.

The Supreme Court jurisprudence on this issue is clear. In Election Commission of Pakistan vs. Javaid Hashmi (PLD 1989 SC 396) it interpreted Article 225 by stating that the “constitutional provision is expressed in negative form to give exclusive jurisdiction to the tribunal appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all courts in regard to election matters and to prescribe one mode of challenge.” It reiterated such meaning of Article 225 as recently as in end 2014.

Also read: Political parties support formation of judicial commission to probe rigging

The SC has also clarified that “the word election has been appropriately used in the Article with reference to the entire process consisting of several steps taken for its completion which have a bearing on the result of the process.” In other words, “election” is to be given broad meaning. If Article 225 bars high courts from delving into any aspect of the election process even in exercise of its constitutional jurisdiction, how will a judicial commission deriving its authority from an ordinance overcome such a constitutional prohibition?


Using adjudicators as investigators is counterintuitive, if not plain wrong.


Then there remains the larger issue of whether judges should be in the business of conducting inquiries at all, notwithstanding the existing practice of appointing judicial commissions under the Commissions of Inquiry Act, 1956. Having come a long way since 1956, we now take the concept of separation of powers embedded in our Constitution seriously. Investigations and inquiries are quintessentially an executive function and an aggrieved party can generally challenge their outcomes before a court of law.

Criminal trials are all about the accused poking holes in police investigations. Courts often appoint local commissions and any party to the proceedings can object to the commission’s findings. It is the court that then sits in judgment over the veracity of an investigation as a neutral arbiter. Where would you go to seek relief if a high-powered inquiry conducted by judges of the highest court records findings against you, even as investigators? Using adjudicators as investigators is counterintuitive, if not plain wrong.

Can a judicial commission declare void the results in constituencies that were never challenged before an election tribunal? Can it interfere with or override the findings in election petitions decided by election tribunals or appeals decided by the SC after hearing the contesting parties? If three Supreme Court judges give definitive findings on the veracity of elections in their capacity as fact-finders, what legal value will their brother judges assign such findings while hearing appeals in election disputes?

Out of the questions to be referred to the commission, the only one capable of being investigated is whether there was a grand conspiracy to steal the PTI’s votes (the party’s allegation of election fraud being contingent on its theory that former chief justice Iftikhar Chaudhry, in connivance with retired judges and returning officers, stole the PTI’s mandate on PML-N’s behalf). Even for such a purpose, an investigation by judges who worked under Mr Chaudhry’s watch is a bad idea. Imagine the PTI’s stinging reaction if the former CJ’s colleagues rubbish this conspiracy theory.

If the proposed commission is established through an ordinance and the courts too don’t conclude that it contravenes Articles 225 or the principle of separation of powers, will such a commission be retained as part of our permanent law to resolve similar conflicts in the future? Have bitter memories of the ’90s and Article 58(2)(b) faded away already? Do our political parties really want to establish as precedent a super commission with the power to pass a blanket verdict on the legitimacy of an entire election?

Let’s assume for a second that a commission is formed, is not declared illegal and concludes unequivocally that the election was one big fraud. What happens then? Because the Constitution doesn’t conceive of a collective challenge to a general election, it doesn’t provide for simultaneous dissolution of assemblies if allegations of grand fraud are substantiated. Only the prime minister can dissolve the National Assembly under Article 58 of the Constitution and the chief ministers can dissolve provincial assemblies under Article 112.

Let’s assume that the PML-N abides by its legally non-binding commitment of calling fresh elections, Prime Minister Sharif dissolves the National Assembly, Chief Minister Sharif dissolves the Punjab Assembly, and Chief Minister Khattak dissolves the Khyber Pakhtunkhwa Assembly. What happens to the Sindh and Balochistan assemblies if the PPP, the MQM and Baloch sardars decide that they have nothing to gain from immediate elections? Further, what will be the fate of newly elected senators if the judicial commission finds that the MPs who elected them were devoid of legitimacy themselves?

The proposed judicial commission is a non-starter: it might provide the PTI a face-saving means to return to the National Assembly (despite all those claims and swagger during the dharna) and it might also help the PML-N get a monkey off its back. But let’s hope this obsession with what went wrong in the past doesn’t distract the constructive minds within our political class from pushing forth vital electoral reforms that will prevent it from happening again.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn, March 30th, 2015

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