FOLLOWING the Feb 18, 2008 general elections scores of losing candidates challenged the elections of their rival candidates by presenting elections petitions to the chief election commissioner (CEC) in a hope that their disputes would be decided at the earliest. However, to their utter disappointment most of the election petitions are still pending before the concerned election tribunals.

The proceedings in these election petitions have been going on at snail's pace as the presiding officers of the election tribunals, who are judges of the respective high courts, are engaged in their routine judicial functions and the winning candidates have also been using delaying tactics so as to delay the disposal of these petitions.

It has now become a routine practice that election petitions are filed after every general elections and most of them are lingering on before the tribunals and appellate forum. Thus the post-election disputes continue to persist till next such general elections.

Following the 2002 general elections scores of elections petitions were filed which remained pending for many years. Even if the petition was decided by a tribunal appeal was filed before the Supreme Court and the dispute continued.

In this regard the most famous case was that of Mufti Ibrar Sultan who was elected MNA from NA-14, Kohat in 2002 polls. His rival candidate Iftikhar Hussain Gillani had challenged his election through an election petition on the ground that he possessed sanad of a seminary which was not equivalent to graduation, which was prerequisite for contesting polls.

An election tribunal presided over by Justice Tariq Pervez Khan on June 30, 2003 accepted the election petition, de-seated Mufti Ibrar and ordered re-polling in that constituency. Mufti Ibrar filed an appeal before the Supreme Court which suspended the order of the tribunal and allowed him to continue till final disposal of the appeal. The appeal was still pending when the Feb 18 polls were held.

Article 225 of the Constitution provides that 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 Parliament. The mechanism of filing the election petition and the procedure of its hearing have been provided in the Representation of Peoples Act, 1976.

Under section 57 of the Act the CEC shall appoint as many election tribunals as may be necessary. The tribunal shall consist of a person who has been, or is, or at the time of his retirement as a district and sessions judge was qualified to be a judge of a high court.

The CEC appointed 30 election tribunals - 12 for Punjab, eight each for NWFP and Sindh and two for Baluchistan - on Feb 27 and 28. The tribunals in NWFP included Justice Said Maroof Khan, Justice Hamid Farooq Durrani, Justice Muhammad Alam Khan, Justice Shaji Rahman Khan, Justice Ghulam Mohy-ud-Din Malik, Justice Syed Yahya Zahid Gilani, Justice Ziauddin Khattak and Justice Syed Musadiq Hussain Gilani.

Moreover, section 67 (1A) has made it mandatory on the election tribunal that it should proceed with the trial of the election petition on day to day basis and the decision thereof shall be taken within four months from its receipt.

Keeping in view the present circumstances it is next to impossible for the election tribunals to conduct day-to-day hearings. In the Peshawar High Court there are presently 12 judges functioning eight of whom are presiding officers of tribunals. Normally, election petitions are fixed for hearing on Monday and Friday, the days when the judges are performing as single-bench. Even on those days routine cases have also been fixed for hearing. On other days the judges normally work in division benches and the election petitions could not be fixed for hearing.

A preliminary report recently launched by the International Foundation for Electoral Systems (IFES) revealed that this mandatory provision of the Representation of People's Act has not been implemented due to variety of reasons. The report is the result of a study conducted by foundation to study the post-election adjudicatory mechanisms for resolving challenges to election results in Pakistan.

According to the report a total of 265 petitions were filed before the CEC - 94 regarding National Assembly and 171 about provincial assemblies' elections. Of these 265 petitions, 138 were filed regarding Punjab, 46 in Sindh, 38 in Balochistan and 37 in NWFP.

The study was led by Peter D. Lepsch, a consultant with the IFES. There are various findings put forward in the report which included Based on current date trends and observations by IFES tribunal monitors it is anticipated that the vast majority of the election petitions filed will not be completed within the statutory prescribed timeframe.

The study preliminary findings indicate that the election tribunal mechanisms are marked by substantial delays at all levels.

It is added that consistent with anecdotal perceptions, initial findings point to considerable delays in the election tribunal process resulting from the use of current legal procedure of traditional trial practice. Notice requirements and customary adjournment practices currently function as built in delay mechanisms, the reports states.

The study reveals that the magnitude of these delays seriously impacts the credibility of the Election Commission of Pakistan and raises questions regarding the legitimacy of the election results generally.

The foundation observes that the lack of robust day-to-day scheduling of election tribunal hearings impairs the rights of candidates to due process and timely redress, which is critical to effective and legitimate election dispute resolution processes.

It is observed that the election tribunal process lacks vigorous prioritisation necessary to fully meet the international standards of effective remedy and fair hearings for challenging election results.