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September 6, 2014

30 NA seats can’t determine entire poll outcome

September 6, 2014

ISLAMABAD: Regardless of the result of the ongoing talks between the government and Pakistan Tehreek-e-Insaf (PTI), the written official response to the demands of the other side says that a sample of 30 out of 272 National Assembly constituencies (11%) cannot be extrapolated to determine the final outcome of the 2013 general elections.
While it rules out the resignation of Prime Minister Nawaz Sharif, it says the National Assembly will be dissolved under Article 58(1), and a caretaker cabinet be appointed in accordance with the Constitution in consultation with all concerned, including the PTI, if the Judicial Commission (JC) found that there was a systematic and concerted plan or conspiracy to manipulate the elections for or against any political party in connivance with the Election Commission of Pakistan (ECP), former members of the judiciary, returning officers, federal and provincial caretaker governments or any other person.
It is incorrect that PTI has been deprived of its legitimate right to be a constitutional consultee in nomination of the federal interim setup. As PTI sits on the opposition benches (assuming its resignations are withdrawn), it can convey its views through the leader of the opposition.
The response said the functions and powers of the JC, whose findings shall be binding and enforceable, should not empower it to act as a super election tribunal in violation of the letter and spirit of Article 225. Its functions should be confined to determination of its terms of reference (ToR).
It said that the Pakistan Muslim League-Nawaz (PML-N) cannot agree that the JC proceedings should be summary in nature. There are important and complicated issues before the JC having serious constitutional, legal and political implications, which cannot be determined in summary proceedings.
The JC may be required to submit its report containing its findings and conclusions within 30 days or within such time as the JC may determine. Its report

shall be a public ToR for JC to determine occurrence of election fraud and rigging.
The official response said that the PML-N has already proposed that the JC should comprise three Supreme Court judges, who are to be nominated by Chief Justice Nasirul Mulk. It would be pleased if the chief justice decides to head the JC personally.
The JC, to be constituted through an Act of Parliament after consensus with other political parties in both Houses and not by a presidential ordinance, will investigate allegations of massive poll rigging.
The Evidence act “shall be applicable” to the JC proceedings. To avoid controversy, it was proposed that the JC may be empowered to decide its own procedure since the issues before the JC are very serious, important and complicated, and evidence of witnesses in respect of such issues requires to be properly recorded and examined.
The JC’s conclusions and findings regarding the ToR have to be based on the evidence on record. No conclusion or finding can be drawn or given on “prima facie” satisfaction or on the basis of “any evidence”. Sufficient and credible evidence has to be produced before the JC to prove the allegations as reflected in the TOR beyond reasonable doubt.
The PML-N agreed, in principle, to the constitution of the proposed Joint Investigation Team (JIT) to have balanced composition and its head may be appointed after consultation with all.
The government agreed that without casting any aspersions on present incumbents non-controversial, non-partisan professionals shall be appointed as heads of the National Database & Registration Authority (Nadra), Federal Investigation Agency (FIA) and ECP Secretary after consultation with all concerned.
Rigging has not been defined in the Representation of the People Act (RoPA), 1976. It is generally taken to mean extensive corrupt and illegal practices [as defined in sections 78 and 83 of RoPA, 1976] which have materially affected the result of an election. Rigging cannot be redefined retrospectively as PTI is attempting to do through its proposal in order to facilitate proving of its allegations.
Non-utilization or defective manufacture of magnetic ink, even if established, resulting in inability of Nadra to verify thumb impressions, cannot ipso facto lead to the presumption that these have resulted in corrupt or The PML-N had no concern, whatsoever, with the manufacture, supply or use of the magnetic ink.
The government response said that the ECP members can only be removed under Article 209. Hence unless they resign voluntarily, the appointment of new members can only be made after relevant constitutional provisions are amended pursuant to the recommendations of the parliamentary committee on electoral reforms.

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