Verdict belies impression of PML-N sympathetic judiciary

ISLAMABAD: Lahore election tribunal judge Kazim Ali Malik was conscious of the fact that Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan’s petition against Speaker Sardar Ayaz Sadiq was a ‘high-profile’ election dispute, and he noted it in his ruling.
His decision indeed shook the Pakistan Muslim League-Nawaz (PML-N), but it belied the impression that the party has a sympathetic judiciary and no major judicial ruling goes against it.
A reading of the verdict doesn’t make it clear as to why the judge posed an ‘important question’ to himself to answer. It related to the doctrine of necessity. What was the need of it and what persuaded him to raise this question to himself? It is an established principle that the judges were bound to search for truth while remaining within the confines of the relevant laws.
Malik wrote that ‘an important question’ confronting the tribunal is as to what would be the best course of action in the given circumstances of the case; either to follow the popular doctrine of necessity cum feasibility for resolving this high profile election dispute or to make microscopic examination of the poll record to arrive at the truth.
The judge wrote that before adopting anyone of these modes of trial, he put certain questions to his own conscience: Am I created simply to keep on thinking about my food? Am I like that animal, which is tied down to a post and which thinks of nothing but its fodder? Am I like that uncontrolled beast, which roams about and does nothing but eats its fill and does not know the purpose of life for which it is created? Have I no Divine religion, no conscience and no fear of Allah? Am I left absolutely free in this world without any check or control to do, as I like? Am I at liberty to go astray, to wander away from the true path and to roam about in the wilderness of greed and avarice?
As is evident from the phrasing of these questions, they were couched in highly emotional language.
Malik said his conscience answered all these questions in negative. Hence he felt that time has come to speak out bitter truth in utter disregard of the doctrine of necessity cum expediency. Before adverting to scrutiny and analysis of the election record with full application of legal and judicial mind, he wrote, he seeks refuge with the might of Allah Almighty.
After his retirement from the subordinate judiciary, Malik was once appointed as the Director General of the Anti-Corruption Establishment by the previous Shahbaz Sharif government.
As per the law, he, like other judges of the tribunals, was appointed to this position by the Election Commission of Pakistan (ECP), which it does after every parliamentary poll.
The judge rejected the supplementary/explanatory note regarding the pre-scanning report of the National Database & Registration Authority (Nadra) chairman what Malik described as the ‘novel theory of statistical expectation’. He absolutely excluded this report from consideration and concluded on the basis of original scanning report of the Nadra.
He wrote that it was manifest from the system generated scanning report of Nadra that Computerised National Identity Card (CNIC) numbers mentioned in 6123 used counterfoils had never been issued by it. On reconsideration, the Nadra chairman introduced ‘self-styled and novel theory of statistical expectation’ to the effect that the members of polling staff and the data entry operators of Nadra might have written incorrect CNIC numbers inadvertently.
The judge said that he has minutely gone through the explanatory note wherein not a single human error by data entry operators of Nadra has been pointed out. Secondly, the election was conducted by the members of polling staff under the supervision of District Returning Officer (DRO) and RO. The Nadra chairman or any other official of his organisation had not been associated with the election.
According to the ruling, the Nadra was required to make a record based report. It was beyond its allotted sphere to make conjectures that the members of polling staff might have noted down wrong numbers of CNIC on the counterfoils on the polling day.
It said the tribunal is under legal obligation to decide the election dispute on the basis of legal and cogent evidence. It is not supposed to attach any importance to the conjectural/concessional theory of statistical expectation brought of the Nadra chairman.
Thirdly, the judgment said, the Nadra chairman did not know what had happened on the polling day, so he should not have theorised without any factual and legal basis that the members of polling staff might have written wrong CNIC numbers on the counterfoils. The theory of statistical expectation is also offensive to the record itself.
The judge also wrote that if the omission on the part of Presiding Officer or Assistant Presiding Officer is not considered as fatal to the election process, even then it could be safely said that the polling staff did not perform the legal obligations carefully. He also concluded that the RO did not discharge his legal obligation.