Judicial Commission clearly confirms systematic and deliberate rigging in 2013 elections
The Judicial Inquiry Commission’s decision that “the 2013 general elections were in large part organized and conducted fairly and in accordance with the law” should not be taken by the people at its face value since this verdict was made under the Doctrine of Necessity to avoid chaos and confusion in the country especially at such a critical time when the army had been mandated to eliminate the terrorism and the deeply-rooted corruption. While the Judicial Commission verdict to maintain the status quo of the Elections was under the Doctrine of Necessity, the Commission did not leave any stone unturned and accurately reported all those irregularities which confirm beyond any doubt that the 2013 elections were systematically “Rigged”. This fact was further proven by the verdicts given by the Election Tribunals in three out of the four findings as demanded by Imran Khan before the commotions of the Dharnas and the Long March as organized by the PTI.
The jurists in the country, who followed the references filed on the election results to the courts and to the Election Tribunals, are of the opinion that the verdict of Judicial Commission was rather “Political” and not “Factual”. They also believe that the verdict of the Judicial Commission was made under the Doctrine of Necessity which, as we all know, supersedes the established rules and dispenses with the verdict which otherwise is not lawful.
The Judicial Commissions, although do not carry the same legal status as the courts in the country, however, they were viewed by many jurists as parallel to the Supreme Court of Pakistan since the Commission was headed by the Chief Justice of Pakistan along with two Supreme Court sitting judges. Today, the Judicial Commission and its verdict have gone into the annals of history of the judiciary in Pakistan, leaving behind two burning questions for the jurists as well as for the political circles to ponder over and reflect upon. First, was the formation of the Judicial Commission to deal with the results of general elections Constitutional or not? And secondly, did the decision of Judicial Commission under the Doctrine of Necessity to avoid political chaos and instability, as a result, implicate the Justice System of Pakistan? Yes or no? This is something that all of us must carefully think about, understand and process.
Let’s first deal with the question of the formation of the Judicial Commission. The Judicial Commission was formed under pressure following the agitation campaign by PTI against the alleged Riggings in the 2013 polls. The formation of the JC was challenged in the Sindh High Court and was declared as “unconstitutional”. The petitioners strongly claimed that the laws governing elections such as the Representation of People Act of 1976 (ROPA) and Pakistan’s constitutional provisions were blatantly ignored as the government promulgated an Ordinance which was never presented in the Parliament. Therefore, the formation of the Judicial Commission as a result of the political exigencies and the “political necessities” is a clear violation and a direct insult to the Judicial System of the country, and amounts to grave abuse of power by the government and those political forces which supported this idea. If the JC becomes unconstitutional then its verdict becomes redundant, and no one should celebrate or justify the elections results in the light of this verdict. Of course, Allah never “surkhuroo” (gives victory) to those who use illegal means such as the JC to justify their illegal and immoral actions such as “Rigging” as the PM proudly addressed the nation after the JC verdict.
Now, let’s look into the other aspect of the Judicial Commission i.e., the verdict on the 2013 elections and its results. The Media conducted a survey on the verdict of the JC, where almost 70% of those who were surveyed, said that they were not satisfied with the verdict of the JC. In certain judiciary circles, it is believed that the decision of the Judicial Commission under the Doctrine of Necessity to avoid political chaos, implicates Justice System of Pakistan which is already being attacked by the international jurists and sadly has become a mockery. In 2008, the Management Systems International, a USA-based NGO, prepared an interesting report which was an eye-opener, titled “Pakistan Rule of Law Assessment” on the legitimacy of the Pakistan’s legal system. The report says “the Pakistan’s legal system lacks legitimacy due to the tension between the inherited British Common Law System and the Islamic Law based on the Quran (Shariat) which is further compounded by the low level of efficiency, the prevalence of delays, the inferior quality of legal training, corruption and the perception that the court system is a tool for the delay of justice, manipulated by rich and/or powerful interests in the society”. (I am currently writing another article “Is the Court System in Pakistan a tool to escape Justice and Punishment” which will be released soon in the press.)
Justice Nasirul Mulk and his two associates must have tested the current political temperature of the country, and felt that by declaring the 2013 elections as “Null and Void” based on the irregularities may further complicate the political situation in the country. Therefore, they decided to rely on the Doctrine of Necessity (without quoting this in their verdict) to validate the 2013 elections not withstanding the irregularities which they themselves vividly documented in the report.
This Commission further added fuel to the fire when they made the shocking statement that “an election could potentially be organized in an unfair manner but may still represent the overall mandate of the electorate and vice-versa”. This statement has unfortunately further tarnished and damaged the very foundation of democracy as it openly encourages and promotes corrupt, unethical and dishonest politicians, election commissions and the bureaucrats to practice free reign to rig future elections under this very doctrine, by abusing the system, and gaining political advantage for their own personal deceitful gains. I am sure the jurists are well-aware of the fact that a legal verdict — be it right or wrong — becomes a precedent for the future court judgments. And this is true for any judicial system in the world as that is how it works, and the way laws are created and enacted.
We should not forget the famous case of Moulvi Tamizuddin in 1955 in which if Chief Justice Muhammad Munir would have not reversed the High Court decision for the Moulvi Tamizduddin case (Federation of Pakistan v Moulvi Tamizuddin Khan PLD 1955 FC 240) for unconstitutionally dissolving the constituent assembly and invoking the Emergency Powers by the late Governor General Ghulam Mohammad by applying the “common law of civil and state necessity” later referred to as the “Doctrine of Necessity”, the Apex courts in the future, based on this judgment, would not have validated the military regimes of dictators in Pakistan.
The systematic Rigging has been the practice in most Pakistani elections except with the 1970 elections conducted by the Army Chief General Yahya Khan. These Riggings are normally sponsored by the government in power and more specifically by the Election Committee generally appointed by the ruling parties. The members of the Election Commission can even overrule the orders of the Chief Election Commissioner in case the Chief Election Commissioner does not wish to become the party to these riggings and tries to act in a fair and honest manner.
Although, the Pakistan parliament has passed many rules and regulations since the inception of the 1973 Constitution to enforce free and fair elections but none of these rules and regulations are followed by those appointed by the corrupt government and their appointed Elections Committees, and instead are simply trampled and tossed aside. The Returning Officers at the polling stations who hold a vital role in the casting ballots play a major role in the rigging. These polling officers are appointed and briefed by the EC, the agents of the corrupt politicians, to rig the polls. In Pakistan, the Returning Officers in a province are appointed from the judiciary and the bureaucracy of the same province. More often these Returning Officers are known to the candidates in their riggings and are briefed by their superiors who provide the support and security at these polling stations. In India, on the other hand, the Election Commission is much more independent, unbiased and fair, and at large they do not appoint the Returning Officers in a region to those who live in the same region for this very reason – to avoid any rigging or other malpractices. In Punjab for example, the Returning Officer may come from Gujarat while in U.P., the Returning Officer may come from Punjab and so forth. Therefore, the chances of any collision or any interference of the Returning Officer with the candidates and / or the voters are almost none. In Pakistan though, this system is not followed.
Imran Khan and Dr. Tahirul Qadri along with a few other politicians such as Sirajul Haq and General Pervez Musharraf who are honest and sincere, and not involved in any corruptions and scandals , are aggressively and strategically spearheading the campaigns to bring about the much-needed and over-due reforms to the Electoral Systems in Pakistan. The recent Dharnas of Imran Khan and Dr. Tahirul Qadri and their constant demand in public speeches have played a major role in enlightening the public about the corruption and uncovering the Riggings in the past elections. Imran Khan’s demand for creating the Judicial Commission which uncovered the irregularities (Rigging) has added to his popularity and gave a big boost to his party PTI. There is now a constant pressure on the government and the official opposition to bring reforms to the Electoral system and to appoint honest and fair election committees before any general elections takes place. If the electoral reforms are placed before the elections and the army is asked to get involved in some form in the elections the Pakistan would witness a major shift in the results of next elections. Pakistan needs a change today and urgently, and the voters must exercise their right of vote under no influence whatsoever.
The writer is Political Scholar and Analyst based in Montreal, Canada.