THE JUDICIAL COMMISSION—UP THE DOWN-SIDE

Situationer

M Ziauddin

Thursday, April 16, 2015 – THE constitution of the judicial commission to probe the 2013 polls has brought to an end a highly contentious street agitation launched by the Pakistan Tehreek-i-Insaf on August 14, 2014. The spirit of reconciliation among various mainstream political parties that had pervaded the political environment in the country since the 2008 polls was rudely shattered by the PTI’s agitation and according to the ruling PML-N it had even caused massive economic set back to Pakistan. One can dispute this claim of the government party but cannot ignore the fact that the agitation had the potential to disrupt the normal life of most citizens.

So, in a way it was a victory of sorts of the democratic forces that the issue was finally settled in a spirit of give and take between two opposing political forces without the need of the intervention of the so-called ‘third umpire’ who in the past has thrived in such politically confrontational environments and most often than not ended up in the driving seat to the completeexclusion of the warring political factions.

However, while it is a welcome departure from our tried and tested methods of settling political disputes, the agreement between the PML-N government and the opposing PTI to constitute a judicial commission comprising three judges of the supreme court, in a significant way goes against the very spirit of the constitution according to which it is the Election Commission of Pakistan (ECP) which is the final authority as far as any issue or dispute concerning the elections and the Supreme Court has no jurisdiction over the conduct of the elections organized by the CEC.

In fact this spirit of the constitution was violated by the former Chief Justice Iftikhar Mohammad Chaudhry who advanced the election schedule of the president once it was fixed by the CEC causing the former Chief Election Commissioner Fakhruddin G. Ebrahim to resign in protest. Instead of making the former CJ pay for this constitutional transgression, the PTI and the PML-N have opened a Constitutional Pandora’s Box by constituting the JC. And in case things take a seriously chaotic course as a result of the recommendations of the Chief Justice -led judicial commission set up to find out whether nor not the last elections were held strictly in accordance with the law of the land, whether it was rigged systematically and whether the mandate obtained through these elections were correct, questions could be raised by the interested quarters on the integrity and credibility of the Supreme Court itself.

Still, one hopes the findings of the judicial commission would help identify the weaknesses and administrative gaps in the CEC’s administration of elections and are made available in time for the parliamentary committee set for electoral reforms to benefit from the work of the JC.

Elections in Pakistan are big business. It has always been so. In the 1985 party-less polls held during General Ziaul Haq’s martial law regime buying of votes was turned into a legitimate business. And perhaps to doubly ensure PPP’s defeat in the general elections held in 1990, the then generals in power distributed as much as Rs. 140 million among their favorites to enable them to out-bid the then popularity of Benazir Bhutto. This has become a classic case of generals trying to influence an election not only with the fire-power at their command but also with the corruption tainted money.

Air Marshal Asghar Khan, in 1996 wrote a letter to the then Chief Justice Nasim Hasan Shah against former army chief, General Mirza Aslam Baig, former ISI chief Lieutenant General Asad Durrani and Younis Habib of Habib and Mehran Bank relating to the disbursement of public money and its misuse for political purposes. On the basis of Asghar Khan’s petition, Asad Durrani took the stand in the Supreme Court and provided an affidavit that the army had indeed distributed Rs. 140 million to anti-PPP political candidates only a few months before the October 1990 general elections ostensibly to buy votes.

The entire electoral history of Pakistan is marred by malpractices, rigging and electoral frauds. Whether conducted by generals or by civilians all general elections held since 1970 have been tainted, flawed and have been to known also to have been engineered. The 10th one held in May 2013 was no exception.

Under the 1973 constitution it is the judiciary that has been bestowed the responsibility of conducting elections. A former Supreme Court judge is appointed the CEC and former High Court Judges of provinces are appointed his four assistance. This is done through consultation between the outgoing leader of the house and the leader of the opposition. And all the Returning officers are also from the lower judiciary.

Judges normally do not have administrative experience. They come after the fact that is, after a crime has been committed. Therefore, perhaps their consistent failure to administerrelatively free and fair polls and also seen by the public at large to have been so. It would be beneficial, therefore,if the Judicial Commission headed by the chief justice were to look into this problem. The Commission could also take a look at the Indian practice of handing over the responsibility of conducting elections to the retired civil servants of good public reputehaving the experience and training to administer such tasks. The Indian EC also enjoys the powers of the chief executive of the country for the duration of polls. And the Indians claim that by introducing the voting machine they have successfully overcome more than half of elections complaints.

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