Is the judicial commission ‘constitutional’?

Published April 3, 2015
One thing both sides agree on is the need for sweeping electoral reforms that are acceptable to all political parties.—DawnNews screen grab/File
One thing both sides agree on is the need for sweeping electoral reforms that are acceptable to all political parties.—DawnNews screen grab/File

ISLAMABAD: After the government and PTI agreed on formation of a judicial commission to investigate allegations of rigging in the 2013 general elections constitutional experts are at odds over the compatibility of inquiry in the context of existing laws.

Some argue that the commission fits perfectly into the existing framework of the Constitution, whereas others see its mandate as being in violation of established traditions of the law of the land. The arguments from both sides boils down to Article 225 of the Constitution, according to which, election-related affairs can only be taken up at election tribunals.

Know more: PTI, PML-N sign agreement to form poll inquiry commission

Entitled ‘Election Dispute’, Article 225 states, “No election to a house or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by act of Majlis-i-Shoora (Parliament).”

Legal experts remain divided on what the commission would actually accomplish

However, one thing both sides agree on is the need for sweeping electoral reforms that are acceptable to all political parties.

For Asma Jahangir, a leading legal expert and human rights activist, the country desperately needs electoral reform, not a judicial commission. This, she said, could only be done by politicians, not judges. “What happens if tomorrow the proposed commission determines that the general elections were mismanaged on so and so grounds? Eventually, the ball will land in the politicians’ court to undertake corrective measures,” Ms Jahangir argued.

“For me, the only surprise the commission can pull off is if it confirms that the results of the previous general elections were deliberately manipulated in favour of the ruling party. Otherwise, it will be a waste of time,” she said.

Criticising the proposed commission on legal grounds, former JUI-F senator and Supreme Court Bar Association President Kamran Murtaza said Article 225 was unequivocal that the outcome of the general elections could only be challenged before election tribunals. “For me, the formation of the JC is an out-and-out violation of the Constitution and the moment government announces its promulgation, it will be challenged in the Supreme Court.”

Even if the commission finds – in so many words – that the last elections were rigged, constitutionally speaking the assemblies can’t be dissolved as a result of that, he added. When confronted with the agreement among political parties over the purposes of the judicial commission, Mr Murtaza said that agreements between political parties and articles of the Constitution were two different things and were not interchangeable.

Under the MoU agreed upon between the PTI and the ruling PML-N, on Wednesday, if the proposed commission finds that the results of the last general elections didn’t reflect the true mandate of the people, the national and provincial assemblies would be dissolved and fresh elections held.

Last week, at a meeting of parliamentary parties chaired by the prime minister, the MQM had raised the question of Article 225 and even hinted at challenging the formation of the commission before the Supreme Court.

Those who see nothing unlawful with an investigation into the last general elections offer equally convincing arguments in its favour. Veteran Barrister Aitzaz Ahsan said that Article 225 didn’t bar an overall investigation into the outcome of an election, which, considering the country’s chequered electoral history, was a commendable move.

Mr Ahsan, who had published a white paper on alleged rigging in the NA-124 constituency, where his wife lost to a PML-N candidate, said that there was so much controversy around the results of the last elections that a probe led by Supreme Court judges was the only way forward.

To a question, Mr Ahsan said that the findings of the commission depended solely on the evidence presented before it. “To me, those speculating on the outcome of the commission make absolutely no sense.”

When asked about the possibility of challenging the commission’s formation before the Supreme Court, former Justice Tariq Mehmood said the petitioner would have to prove that its formation was in contravention of Article 8; that it violated basic human rights. “Legally speaking, I don’t see anything wrong with the purpose of the commission.”

However, Justice Tariq was unclear as far as the possible outcome of the proposed commission was concerned. With the terms of reference both sides have agreed on, “I have my doubts whether the judicial commission will come out with definitive findings or not,” he said.

Published in Dawn, April 3rd, 2015

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