Among the many problems that afflict us, two are particularly vexatious.
One, whether it is individuals or institutions, we seem less interested in doing our own job and more interested in doing the job of others. The legislature is interested in speeches but not legislation. The executive is interested in patronage but not governance. The military is interested in everything: from fighting wars to running foreign policy and courts. And the judiciary wants to put everyone’s house in order except its own.
And two, we are a short-cut nation. We have no patience to do things right and take the surer route of institutional reform to address our problems. Obsessed with ends and producing immediate-term consequences, we are willing to countenance even the most rotten means of doing so. During democratic times our sole focus remains mid-term regime change. And for such change we are willing to sleep with whoever can get the job done.
Conducting inquiries is the job of investigation agencies and falls within the domain of the executive and not the judiciary. In our common law adversarial court system, judges are appointed to adjudicate on disputes, not conduct inquiries.
In extraordinary cases, where reports are required for policy input or a dispute is such that there is need to take the inquiry out of the executive’s control for sake of its credibility, non-partisan or bipartisan commissions can be formed.
The US 9/11 Commission comprised Republicans and Democrats. The Abbottabad Commission comprised a former judge, diplomat, police officer and general.
Couldn’t the PML-N and PTI find three individuals of integrity across Pakistan other than serving judges?
Time will tell whether the decision of our otherwise cautious and prudent chief justice to head the three-judge commission to investigate allegations of election rigging is wise. But it raises some concerns. By agreeing to take on this exercise hasn’t the Supreme Court dived into the political thicket?
Conducting inquiries falls within the domain of the executive and not of the judiciary.
The US Supreme Court elucidated the political question doctrine in ‘Baker v. Carr’ and ruled that the court ought not adjudicate on questions that are fundamentally political as opposed to legal.
The identified characteristics of political questions included: “textually demonstrable constitutional commitment of the issue to a coordinate political department”; “lack of judicially discoverable and manageable standards for resolving it”; “impossibility of a court’s independent resolution without expressing a lack of respect for a coordinate branch of government”.
The three-judge judicial commission has had to be formed by an extraordinary one-time-applicable ordinance, which has been designed to circumvent the procedure for resolution of election disputes prescribed by the Constitution. Article 225 unambiguously states that, “no election … shall be called in question except by an election petition” presented to election tribunals.
Now the entire country is witness that the PTI has been calling general election 2013 “in question” in all available forums (including the streets).
The commission has thus been formed for no purpose other than to call in question the legitimacy of elections 2013. What tortured meaning can be given to the concept of ‘calling an election into question’ to conclude that the Judicial Commission Ordinance, 2015, doesn’t fall foul of Article 225? ‘What cannot be done directly cannot be done indirectly’ is an entrenched principle of the law. Can Supreme Court judges do in non-judicial capacity under an ordinance what they aren’t allowed to do in their judicial capacity under the Constitution?
Under Article 218 the Election Commission of Pakistan is to ensure that the “election is conducted honestly, justly, fairly and in accordance with law…” Ruling on ECP’s performance is the judicial commission’s first term of reference (ToR). Any aggrieved party could take the ECP to the high court under Article 199 or the Supreme Court under Article 184(3) for alleged malfeasance or nonfeasance in relation to Article 218. While there has been no judicial finding on the issue, three Supreme Court judges will now render a finding in a non-judicial capacity.
The second ToR essentially requires the judicial commission to investigate whether the judiciary (former chief justice and returning officers) was in cahoots with the ECP (also comprising former judges) and the caretaker government (also headed by a former judge) to steel the election for PML-N. If the judicial commission concludes that a conspiracy existed, the finding will be self-incriminating. If it rejects the allegation, it would attract the charge of protecting institutional self-interest.
The third ToR is even more impossible. On what basis will the judges determine whether or not the present dispensation enjoys genuine public mandate? Will they sample a few constituencies and draw conclusions about the entire election? To predict who will win the public mandate vast resources are deployed to conduct opinion and exit polls and even then there are surprises eg the Aam Aadmi Party’s overwhelming success in Delhi.
Elections are a polarising affair generally. With the PTI’s long march and dharna over rigging, the ordinary citizen, depending on his political affiliation or sympathy, has already made up his mind about election 2013. There is nothing that even a perfect judicial commission can report that will change people’s perceptions. If the commission finds in favour of PTI, half the country will see the judiciary as a conspiring regime-change agent. If it gives the PML-N a clean chit of health, the other half will be up in arms using all kinds of expletives.
By jumping into the political thicket, the US Supreme Court embarrassed itself in ‘Bush v Gore’. Justice Stevens succinctly observed in his dissent that, “it is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law … Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
At a time when public confidence in our court system is in the pits and the Constitution has been amended to establish military courts, shouldn’t our judiciary singularly focus its time and energy on setting its own house in order?
The writer is a lawyer.
Published in Dawn, April 13th, 2015