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April 24, 2015



Post-electoral conflicts

Ending an eight-month long political impasse in the country, the PML-N and the PTI have eventually finalised the judicial inquiry commission to probe the rigging allegations vis-a-vis the 2013 general elections.
Consequently, an inquiry commission comprising three senior judges of the apex court, including the chief justice of Pakistan, are now formally probing whether or not “the General Elections-2013 were organised and conducted impartially, honestly, fairly, justly and in accordance with the law.”
Unfortunately, certain dishonest electoral practices have become an essential part of the political culture in Pakistan. Every losing political party has accused the winner of rigging and manipulating elections in the country. Pakistan does not possess any comprehensive legal mechanism to probe charges regarding any massive or large-scale electoral rigging. However, in case of any electoral irregularity, the Representation of People Act, 1976 provides a legal remedy to individual candidates to file election petitions in the election tribunal duly constituted by the ECP.
Under Article 225 of the constitution of Pakistan, these elections can only be called into question at these election tribunals. This constitutional provision implicitly prohibits any other court from adjudicating any election dispute in Pakistan. Therefore, an election tribunal is the only legal forum for electoral dispute-resolution in the country.
The recently-promulgated General Elections-2013 Inquiry Commission Ordinance, 2015 is nothing but another modified version of the Pakistan Commission of Inquiry Act, 1956. In addition to the Terms of Reference (TOR) and time-frame for the proposed inquiry, the powers and composition of the proposed inquiry commission have been included in the said act to meet the requirement of the government to form an inquiry body to probe alleged rigging in the 2013 general elections. Apparently, through this ordinance, the government has tried to

lower the political temperature in the country by pacifying the PTI. However, this ordinance doesn’t address the underlying issues related to the formation of this inquiry body.
Article 225 of the constitution of Pakistan has been considered to be the major stumbling block in the way of conducting any inquiry, investigation or trial by any court other than the duly constituted election tribunals. Strangely, instead of removing this constitutional and legal anomaly by introducing an appropriate amendment in the constitution, the government has readily chosen to instantly promulgate a presidential ordinance purely on an ad-hoc basis. This is the reason that the legality of this presidential ordinance was formally challenged in the Supreme Court of Pakistan and the Lahore High court.
Inquiry, investigation and trial are three stages in legal proceedings. The purpose of an inquiry is to determine the truth or falsehood of a specific charge. On the other hand, the primary purpose of an investigation is to collect evidence to support a trial. And in a trial, the court of law formally adjudicates on a matter after examining the evidence available.
Owing to its narrow scope and limited mandate, inquiry is comparatively a weak legal instrument to ascertain real facts in a case. On the other hand, a thorough investigation followed by an impartial trial can ultimately go a long way in conclusively determining the complex issues of law and fact involved in a particular case.
To precisely determine the rigging allegations in the 2013 general elections is rather a complex issue which an inquiry body can hardly resolve owing to its inherent shortcomings and limitations. Therefore, it would be appropriate and quite advisable to legally determine the question of alleged electoral rigging through an impartial trial conducted by the apex court instead of this inquiry commission. After critically evaluating the evidence available, and affording both sides full opportunity of being heard, the proposed trial court can adjudicate the validity of these elections. If it finds any foul play, it can also legally declare these elections null and void.
The report submitted by the judicial commission may have some political significance but, at the same time, it will certainly be non-binding legally. Under the law of the land, an election result even in a single constituency cannot be interfered with, or otherwise altered, by a legally constituted election tribunal without due process being followed. Therefore, one may absolutely fail to understand how the credibility of the entire general elections can be judged by an inquiry body within such a short period of 45 days.
In order to remove legal anomalies, and to provide an effective and efficient legal forum to conclusively determine questions relating to the credibility of the last general elections in Pakistan, it is quite expedient to significantly amend the Article 225 of the constitution of Pakistan. By making this constitutional amendment, the jurisdiction of the apex court can be extended to the cases involving any massive or large-scale rigging in the general elections.
Needless to say, election tribunals will continue to redress individual grievances in these elections according to the law. Not only does this amendment help resolve the current political impasse in the country, it will also go a long way in ensuring fair and transparent elections in Pakistan in the future. This constitutional amendment should necessarily be part of the much-discussed electoral reforms in the country.
At present, there exists hardly any comprehensive institutional legal mechanism in Pakistan to adequately and instantly resolve post-election political controversies and legal disputes like that of unsubstantiated massive electoral rigging allegations in the 2013 general elections. In the absence of such legal dispute-resolution apparatus, a 126-day long sit-in in Islamabad moved the rulers to get these elections probed through an inquiry commission.
On account of this political turmoil and confrontation between the government and the protesting political parties – the PTI and PAT – the economy of the country has suffered a huge monetary loss to the tune of hundreds of billions of rupees. Had Pakistan had such a legal apparatus, it would have avoided this political turmoil and unrest.
In order to ensure free and impartial elections in Pakistan, the framers of the constitution have ideally tried to make the ECP an independent and autonomous election body by inserting Article 225 in the constitution. They did not foresee the situation that arose in the country following the 2013 general elections. This sort of political situation necessarily demands constitutional arrangements for the early settlement of election disputes.
The constitution is nothing but the formal documented expression of the will of the people. Therefore, this document should always readily protect and promote the ‘general will’ in a polity.
The writer is a Lahore-based lawyer. Email: [email protected]