Minutes after an election tribunal on Monday ordered re-election on a Lahore national assembly seat (NA-125, Cantonment) won by Railways Minister Khawaja Saad Rafique in the 2013 election, Dr Awab Alvi tweeted: sad fact what the election tribunal should have decided in 120 days, takes one year, 11 months and 23 days — justice delayed is justice denied.
His tweet largely summed up the feeling of millions of Pakistanis, including but not limited to Pakistan Tehreek-i-Insaf (PTI) supporters, who want the country’s electoral system to be reformed and election disputes decided swiftly, or at least within the stipulated timeframe of four months.
But the question is: can the election tribunals investigate allegations, ascertain facts and decide the petitions against the winners by the losing candidates within the given time? Opinion is divided on this matter.
Some lawyers say that the “implementation of certain actions may help speed up decisions by the tribunals in most cases”. However, the allegations of vote rigging and irregularities as levelled by PTI’s Hamid Khan against his rival, Khawaja Saad Rafique, are not easy to investigate, and it would be better to avoid rushing the matter in such cases.
How quickly can an election petition be disposed of depends largely on what the petition pertains to, says lawyer Saroop Ejaz. “In cases where petitions challenge the eligibility of a [winning] candidate [on the basis of misdeclaration of his or her assets or academic qualifications, etc], it is easier to decide the matter swiftly. When a petition raises factual controversies [such as vote rigging as in the case of NA-125], it may take longer to arrive at a decision because it requires deeper investigations and scrutiny of evidence as well as questioning of witnesses.”
Many concur with him, pointing out that the tribunal that ordered re-election in the NA-125 constituency had reached the decision only after extensive inspection of the election record by a local commission it had appointed for the purpose, verification of thumb impressions of voters by Nadra and random scrutiny of the ballots from 10 polling stations.
Indeed, the election tribunals set up after the 2013 elections have done a much better job than before. A report that quoted anonymous Election Commission of Pakistan officials said 355 of the 387 petitions filed across the country had already been decided.
It is in spite of the stay orders obtained by both defenders and challengers from the higher judiciary to avoid or delay an adverse decision, and long and repeated adjournments sought by their lawyers as a tactic to prolong the tribunals’ proceedings.
Lawyers say several petitions from the 2002 and 2008 polls are still pending with the tribunals.
In the past, the tribunals were headed by high court judges, who had little time to spare to hear election petitions owing to the standard workload. This time the ECP hired retired judges for the job, which has made all the difference.
Lawyers argue that the working of the election tribunals could still be improved a lot through better management. The tribunals, for example, should be bound to complete the hearings of petitions within the stipulated time unless they have some solid reason for breaching the four-month period.
Furthermore, they should be empowered to penalise any state institution, official and individual found deliberately delaying production of evidence, document, or information required by them. Then, the parties involved in the election disputes should not be allowed unnecessary adjournments by the tribunals or stay orders by the higher judiciary.
Prominent lawyer S.M. Zafar says the stipulated timeframe for deciding election petitions was ‘directory’ and not ‘mandatory’. “You can’t set a timeframe for deciding the election petitions, but you can motivate the judge heading the tribunal to take as less time as possible to make the decision. What we require is better management of the working of the tribunals for swifter decisions on election disputes,” he says.
Political analysts — and some PTI leaders — are unanimous that politically the “delayed decision” on Hamid Khan’s petition against rigging in NA-125 has cost the party a lot.
“The Nawaz Sharif government would’ve collapsed if this decision had come during the PTI’s anti-government sit-in in Islamabad,” Punjab PTI president Ejaz Chaudhry told Dawn.
NA-125 is one of the four national constituencies (NA-110 in Sialkot, NA-122 in Lahore and NA-154 in Lodhran being the other three) where the PTI has been demanding forensic examination of the election record from day one to prove that the 2013 elections were “systematically” stolen from it.
“Timing is everything in politics. The PTI may not be able to draw as much political advantage from the favourable decision on NA-125 now as it could have during its dharna. Yet it is a moral victory for the party and a big setback for the ruling PML-N,” said journalist and political analyst Suhail Warraich.
Nonetheless, Dr Hasan Askari, political analyst, says the tribunal’s decision has brought the PTI back to a position where it can assert in the country’s politics. “Another such adverse decision for the PML-N — for example, in another Lahore constituency, NA-122, from where Speaker Ayaz Sadiq defeated PTI chairman Imran Khan — would put the PML-N on the defensive and the PTI on the offensive,” he said.
Published in Dawn, May 5th, 2015