BEFORE extraordinary demands are made, the regular channels of dispute resolution ought to be exhausted. The controversies surrounding the general election are many, and the apparent bungling of the vote-counting process and the announcing of results by the ECP has made it clear that litigation over the election will continue for some time. It is therefore thoroughly premature for the PML-N to demand that a judicial commission be formed to investigate the general election, which the PML-N and a number of mainstream political parties, other than the PTI and its purported allies, have widely denounced as unfair and non-transparent. A judicial inquiry into a general election would hardly be unprecedented. It took an inquiry by then chief justice Nasirul Mulk to finally settle in July 2015 the controversy that the PTI had kept alive over the fairness of the general election held in May 2013. But that challenge by the PTI amply demonstrated why it is preferable from a democratic perspective to avail the constitutional and legal options first.
There are several reasons for the judicialisation of politics in the country, which has arguably reached undesirable proportions, and one of the factors is the haste shown by civilian politicians to refer seemingly every political and institutional dispute to the courts. The courts do have a role to play in the adjudication of election disputes, but first the ECP must be approached. If after a hearing and decision by the election authorities, an aggrieved party still believes it has a case to pursue, there is an appeals process that can be taken to the Supreme Court if necessary. Compounding the uncertainty over last week’s election results are the myriad failures of the ECP in the vote-counting process and in the announcing of results. While the ECP has done well to open up some constituencies for a recount — and should open up others if they are serious doubts about the fairness of polls there — it has yet to thoroughly investigate and produce a report into the failures after voting on July 25. Hence, it cannot be known yet if a high-level judicial inquiry into the overall conduct of the election is required.
There also remains the parliamentary route. After the National Assembly is sworn in, there will be a significant opposition in parliament. The combined strength of the opposition parties will not allow the government to easily sweep aside charges of electoral fraud. In addition, incoming prime minister Imran Khan has already indicated that the PTI will not try and block challenges to the election results. If Mr Khan has pledged to cooperate in good faith, it would behove the opposition to take up the PTI government’s offer first. If all other avenues for redressal and inquiry fail, the option of a judicial inquiry could be taken up as a last resort.
Published in Dawn, July 31st, 2018