Judicial commission at work

It is advisable not to comment on the proceedings of the Judicial Commission. The honourable judges have told us not to. Also, the commission has just started its work. There are many turns and twists that lie ahead. It is best to wait and see. Further, legal battles can be inherently unpredictable. A good piece of evidence can change the course of investigation just as decisively as a bad argument can ruin a perfectly winnable case.
But while these considerations require holding back instructive assessment of investigation into whether the 2013 elections were systematically stolen from the PTI and awarded to itself by the PML-N, the politics surrounding the Judicial Commission’s work deserves attention. Even while they all shout ‘rigging’ – some as they rush to the commission with papers, others by expressing dissatisfaction with the electoral process in a more academic fashion – different parties look at the Judicial Commission’s role differently. This difference of approach is driven by political ambitions, and has a deep bearing upon the strategies that these parties are beginning to adopt as the commission starts to implement its mandate. Let us take the ruling party first.
The N-League is concerned more with whether the Judicial Commission can prove that there was a dark and deliberate design behind the results of the 2013 elections. Obviously, this in turn depends on the quality of evidence that the PTI is able to adduce before the honourable judges. This evidence cannot be anecdotal, superficial or based on fragments. It must measure up to the stern standard that the second TOR of the General Elections 2913 Inquiry Commission Ordinance 2015 lays down for the three members. This TOR mandates the commission to determine whether “2013 general elections were manipulated or influenced pursuant to a systematic effort or by design by anyone.”
This is a tall order. Conspiracies are hard to prove. Even those that actually happen and are executed blatantly are slippery propositions when their designs have to be established on the basis of evidence before courts. In this case, the PTI will have to prove that not only there was a well-knitted and preconceived conspiracy, but that there were also specific individuals behind this conspiracy who were pulling all the strings.
This makes the PTI’s burden of proof heavier than normal. Remember, the issue is that of law, not logic, nor even common sense. The arguments that the PTI has been unfurling in the media or during press conferences sound pleasing to those who believe that the polls were stolen at a mega scale. To move the judges would require a different level of proof. They are bound by the intrinsic merit and quality of evidence that proves beyond any shadow of doubt that a group of individuals (or an individual) influenced or manipulated the election process in a manner that it totally changed the outcome of the whole exercise.
To do that requires time; and days are passing quickly. Already the PTI has missed the opportunity at the first appearance to bring the promised “truckloads” of evidence on the basis of which they had concluded almost immediately after the elections that these had been massively rigged (a word that the TOR of the commission scrupulously avoids). Unless helped by intelligence agencies or some cache of hidden information being found, it is unlikely that the PTI will be able better the evidence they already have gathered. The PML-N camp hopes that their rival’s inability or incapacity to prove their allegations will leave the commission no other option but to trash these claims.
Imran Khan’s party seems to be angling their strategy differently. The centrepiece of the tactics under this strategy is to continue to hammer the point that there is enough random evidence to suggest the polls were engineered at a scale unknown in national history. However, there is growing emphasis on the spirit and letter on the other TORs of the commission as well. These TORs say: a) “The Commission shall inquire into and determine whether or not the May 2013 elections were organized, conducted impartially, honestly, fairly and justly in accordance with the law”; and b) “The results of 2013 general elections on an overall basis are true and fair reflection of mandate given by the public.”
For the PTI these TORs are far more crucial in reality than the third one that requires proof of systematic manipulation by individuals. This is because these TORs make local rigging, malpractices and other defects in the polling process a strong basis for arguing that the polls, cumulatively, do not reflect public aspirations. If the PTI cannot prove conspiracy but can bring (along with other parties) evidence in huge quantum of defective polling in a large number of constituencies it can build a reasonable case under the two TORs that the elections results be declared void.
This explains why the PTI is jubilant at the sight of close to two dozen parties approaching the Judicial Commission with complaints. The more the merrier from the party’s point of view since it wants to show the spread of dissatisfaction with the final outcome of the elections. In this regard even complaints of rigging by the ANP against the PTI in Khyber Pakhtunkhwa suit the party’s convenience. It does not matter who is accusing whom, and who stole the elections from whom, if the volume of such charges continues to grow before the commission, the PTI is just fine with it.
Reminder, Imran Khan’s single aim is to delegitimise the 2013 polls and pave the way for fresh ones: if he can do it by repeating conspiracy allegations endlessly through a helpful media, it is OK; if he can do it by pointing to other parties’ concerns of rigging, it is OK; if he can draw attention to Nadra’s inability to verify polled votes (on account of poor quality of ink, weak thumb impressions, non-biometric readable National Identity Cards etc) it is OK too. It does not matter how it is done; as long as the 2013 polls result is undone, the PTI would happily hug the opportunity.
Other parties’ politics surrounding the commission’s proceedings is somewhat incoherent. The PPP wants to show that its mandate was scuttled in Punjab but when it comes to nullifying all election results and dissolving the assemblies it is just not ready for it because it wants to preserve the Sindh Assembly. The Jamaat-e-Islami too has the same two-forked policy: Karachi polls should be declared null and void but KP elections ought to remain valid. The PML-Q is primarily riding on the PTI’s plans of getting rid of the present system in the hope of profiting from a new electoral exercise.
Which of the above political ambitions and expectations come true depends a great deal on the honourable judges’ interpretation of the TORs. If they keep it straight and narrow, the PML-N’s wishes may come true. If they are expansive and general in their understanding of their mandate, the PTI may surprise its opponents.
But from whichever end you look at it, the Judicial Commission’s job isn’t easy. The 2013 polls were conducted by an interim setup the PPP and the PML-N co-selected, and everyone including the PTI endorsed. They were conducted by the judiciary upon the request of political parties. They were facilitated by the army high command whose then chief of army staff, General Ashfaq Pervaiz Kiyani, made it a point to be seen to be casting his vote. The army’s interface with Nadra, the election commissioner, and its election duties to ensure ‘peaceful polls’ were all part of an elaborate effort to give this nation a mandate as close to reality as possible.
To upend a system that has taken root since, and is now in the midst of a torrent of global, regional and domestic challenges would be quite something. But then justice must be done, the cost regardless.
The writer is former executive editor of The News and a senior journalist with Geo TV.
Email: syedtalathussain@gmail.com
Twitter: @TalatHussain12