Not proven guilty

Published July 30, 2015

AFTER the judicial commission’s decision in favour of Nawaz Sharif and the 2013 caretakers, on the grounds of not proven guilty, it is time for political parties to move away from cliché-ridden rhetoric and concentrate on substantive issues related to electoral reform.

Before we examine the decision of the judicial commission of inquiry into the 2013 general election, it is necessary to examine the question whether the judiciary should at all be asked to decide political matters. Pakistan’s political parties have often sought relief from the judiciary against political setbacks, because the grievance arose from a particular interpretation of the Constitution. The scope for discretion in interpreting the basic law, and what constitutes the national ideology or public interest, helped the judges to rule against the complainant-politicians, except for the 1994 restoration of the Nawaz Sharif government.

The judiciary’s pro-establishment verdicts have had three unwelcome results. First, they have conferred legitimacy, partial at least, on extra-constitutional and usually indefensible political developments, eg, the Tamizuddin and Nusrat Bhutto cases. Secondly, such verdicts divide public opinion; selfish elements are ready to defend even outrageous formulations. And, thirdly, an adverse judicial opinion curtails the aggrieved party’s capacity to agitate the issue further. Imran Khan is the latest victim of all three consequences of seeking judicial relief in a political quarrel.


The ideal of making elections a truly democratic exercise is still far away.


It would make for healthy traditions for settling political issues if all parties could accept the people as the sole arbiters in these matters.

The judicial commission has rightly been praised for adequately addressing the terms of reference (that the ToRs were flawed is another matter) strictly on the basis of the evidence led before it, and giving its opinion in terms that cannot be interpreted in more than one way.

The judicial commission concluded that it could not be said that the elections, on an overall basis, were not a true and fair reflection of the mandate given by the electorate, “because an election could potentially be organised in an unfair manner but may still represent the overall mandate of the electorate, and vice versa.”

Pakistan offers examples of elections of both kinds cited by the judicial commission. The elections of 1945-1946 and 1970 were loosely organised and also attracted the charge of unfairness but the results were a genuine reflection of the electorate’s will. The vice versa part of the judicial commission’s observation was confirmed in 1990, 1993 and 1996 when the elections were held apparently in accordance with the legal framework but the result did not represent the electorate’s mandate.

Imran Khan perhaps made the mistake of blaming Nawaz Sharif mainly for rigging. This tactic was essential for achieving the prime minister’s ouster but it diverted attention from irregularities that fell outside the definition of systematic rigging.

Rigging means that the state organises controlled voting through its employees; for instance, the rounding up of voters by the police in Ayub Khan’s presidential election of 1965. Other tactics have included the impounding of rivals’ vehicles, the withholding of final electoral rolls from rival candidates, the creation of ghost polling stations, the stuffing of ballot boxes at unauthorised places, the creation of special cells in the presidency for ‘transferring’ thousands of votes to the account of chosen candidates, or distributing money through intelligence agencies. In the past, official interference was also noticed during the counting of votes, the consolidation of results, and during the transmission of results from the returning officers to the Election Commission of Pakistan (ECP). Many loopholes that allowed such unfair practices have been plugged, but perhaps not entirely. No party could produce evidence of such official interference, that is of rigging, before the judicial commission and it saw no reason to doubt the authenticity of the overall result.

Unfortunately, the tendency to denounce any election as rigged is deeply entrenched in the country’s political culture. The constitutional provision for caretaker regimes to oversee general elections reflects a consensus that no sitting government can be trusted to hold a fair election. This was further confirmed by the ungainly haggle over the choice of caretakers in 2013.

The judicial commission easily disposed of complaints regarding the printing of extra ballot papers and the non-verification of voters’ thumb impressions. What the complainant parties failed to agitate adequately was the ECP’s failure to check malpractices at polling stations committed by candidates with the willing or forced assistance of the polling staff, that certainly was in evidence in 2013.

No election in Pakistan has been free of malpractices that range from barring women from voting to the stuffing of ballot boxes. Such unfair practices are rationalised by arguing that a candidate can play foul only in proportion to his popular backing and that a candidate’s unfair practices are cancelled out by his rival’s similar manoeuvres elsewhere. These malpractices are possible only with the connivance of poll authorities, from returning officers and presiding officers to security personnel. Sometimes they become parties to unfair practices out of loyalty to their political benefactors, or when they share a political party’s ideology or interest.

Of all the ECP lapses in 2013 the most critical was its lack of control over what went on at polling stations. This mischief cannot be curbed until the ECP has its own, duly trained returning officers and has a network of field monitors.

The judicial commission’s labours have certainly spurred interest in electoral reform, but the establishment of a credible election system will take time. Pakistan has so far been able to create guarantees for regular periodic elections. At present, ways are being found to ensure fair elections. The objective of ensuring free elections is still far away and the ideal of making elections a truly democratic exercise is even further away. These ideals will not be realised until the masses are freed of economic and social bondage, the poor can win political equality with the rich, and women with men. One hopes that in the discourse the judicial commission’s work generates, these ultimate goals are not blanked out by partisan considerations.

Published in Dawn, July 30th, 2015

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