Missing points in govt-PTI judicial commission accord

ISLAMABAD: The critical agreement between the government and Pakistan Tehreek-e-Insaf (PTI) on creating a judicial commission to inquire into any deliberate systematic manipulation in the 2013 general elections misses certain most significant points, which were, otherwise, ceaselessly publicly hammered away.
The accord contains no specific or even tentative timeline for the judicial forum to be composed of Supreme Court judges to complete its job. Earlier, there had been a lot of talk about giving the commission just 45 days.
The, otherwise, welcome agreement also skips any involvement or association of intelligence agencies by the commission. When asked about it, senior government negotiator Finance Minister Ishaq Dar said it would be up to the judicial body to form a joint investigation team or not.
The settlement also doesn’t spell out any precise number of national constituencies that the commission will look into. During the lingering negotiations, there had talk about 35 National Assembly seats.
The words, “on an overall basis”, occurring in the third point of the accord, attract greater import and need added emphasis.
The commission has been asked to examine whether the election results “on an overall basis” are true and fair reflection of mandate given by the public, which means that irregularities and mismanagement that didn’t affect the outcome, taken as a whole, will be inconsequential.
The agreement speaks about the inquiry into the whole electoral exercise – whether or not the elections were “manipulated or influenced pursuant to a systematic effort or by design by anyone”.
The accord also stipulates no punishment, whatsoever, to the Pakistan Muslim League-Nawaz (PML-N) government or no fresh quick general elections, provided the commission found deliberate systematic manipulation in the previous polls.
What PTI Vice-Chairman Shah Mehmood Qureshi said at the joint conference with Ishaq Dar unambiguously reflected that his party wants to move ahead instead of being stuck in the findings of the commission to rock the democratic system. His primary consideration was to have the next parliamentary polls fair and free.
“The aim of these talks is to ensure a transparent election in future. The primary purpose behind the formation of the judicial commission is to ensure fair elections in future,” he stated.
The inquiry of the commission will not affect in any way the petitions, pending disposal in election tribunals, or any matter relating to the polls the courts are seized with.
In the presence of the existing law – the Commission of Inquiry Act—and Constitution, this kind of judicial commission can’t be created; otherwise, Prime Minister Nawaz Sharif’s August 13, 2014, letter to the Supreme Court chief justice, written a day before the PTI and Pakistan Awami Tehreek (PAT) had launched their protests from Lahore, would not gone unheeded.
In order to overcome the legal hurdle, a new presidential ordinance will be promulgated possibly next week to provide for the specific judicial body. But at the same time,
Article 225 of the Constitution has been kept in mind as it bars challenge to polls except through election tribunals.
The article says no election to the Senate, National Assembly or a provincial assembly shall be called in question except by a poll petition presented to such tribunal.
In addition, the Supreme Court judgment, handed down in December last on the petitions against the 2013 elections, which was authored by Chief Justice Nasirul Mulk, is also instructive. It said the three challengers “had no solid grounds or even a shred of credible material to back up their pleas.” The bench pointed out to the lawyers that they have not filed any document in support of the allegations except a news item.
“Even some of the prayers made in the petition sponsored by a former Supreme Court judge are incapable of enforcement on account of their vagueness. Direction was sought for appropriate authorities to initiate criminal and departmental action against members of the Election Commission of Pakistan (ECP) but in the absence of mentioning special authorities, no direction can be given,” the ruling said.
While drafting the ordinance and the concluding the agreement, the negotiators of the two sides have Article 225 and this ruling in view. The commission may, subject to the Constitution, consider appropriate, examine and consider any document, material or evidence relating to the 2013 elections.
The provisions of the ordinance will have effect notwithstanding anything inconsistent contained in any other law for the time being in force. The conduct of inquiry by the commission, submission of its report and the exercise of its functions under the ordinance will not prejudice in any manner any election petition pending in any tribunal or appeal or any orders passed. All these matters will be decided in accordance with the existing law.
The conclusion of the agreement between the government and PTI has been widely hailed as it has got rid of unnecessary protracted conflict, having potential to accelerate. The Awami National Party (ANP) (or to be precise one of its former senators, Zahid Khan) is the only voice that has taken exception to the accord. His objection is irrelevant.
The political ‘jirga’ comprising various parties, which worked hard to bring the two sides around a settlement, has appreciated the outcome.