Guest column By Barrister Ameer Abbas Khan
A true democratic society is the one with system comprising government, executive and judiciary. And the reason for having three different institutions is to ensure that power is not concentrated in any single body and, in addition to transparency and accountability, it is for people to have confidence in the system. It is this lack of people’s confidence in the system that paves way for the extra-constitutional acts.
It is not possible for each and every individual of the society to be happy with any piece of legislation, as mainly it is in larger interest of the society that laws are enacted. But it is that confidence in the system that enables people to accept legislation even if they don’t agree with it or is against their interests.
However, Pakistan, even after 67 years of independence, is still struggling to establish a clear distinction between these institutions and that’s the reason they are seen, on occasions, transgressing their boundaries and entering into other’s realms.
The main reason, which is accepted to most social scientists, for such a crisis of Pakistan not having independent institutions is the military interventions of 1958, 1977 and 1999.
Whatever the benefits such interventions might have brought to the country, the major criticism of them is running the institutions on dictation and not letting them nourish on their own in accordance with the Constitution, as such interventions result in suspending the Constitution as well.
How precedents are set
It is only when you allow and facilitate the institutions to work according to the constitution that strong precedents are set, drawing not only a clear distinction between such institutions but also educating people about their rights and obligations, which in turn leads to the filtration of corrupt and incompetent people from the system through both political and legal processes.
As we see that most of the time people mourn about not having real change in the system and claim that it’s the same people changing their turns. They, however, don’t realise that, as with other institutions, the political one is also not developed to the extent that it starts kicking out its own incompetent, corrupt and undeserved people.
Therefore, the basic criterion for having strong and independent institutions is to follow the Constitution and other legal frameworks, both in letter and spirit, and in the manner as prescribed by the relevant laws.
PTI’s Tsunami March next August
What appears from PTI’s threat to do ‘Tsunami March’ in August 2014 is that, in addition to Constitution of Pakistan, at least Election Laws, if not others, are being ignored as well. And this approach of PTI is not beneficial towards strengthening all institutions of a democratic society.
We have seen in the General Elections of last year (2013) as to how badly people voted Pakistan Peoples Party (PPP) out of power with only managing to secure 37 seats, just 10 seats more than the PTI, in the National Assembly where PML-N formed the government with 129 seats. The total number of votes secured by PML-N, PTI and PPP is 14.9 million, 7.7 million and 6.9 million votes respectively.
The last year’s election shows that in democracy, people judge the governments and they apply their judgments at the time of election and even strip the government of its power.
This is the prerogative that People of Pakistan missed since its independence and last year one was the first elected government that was dismissed by the people themselves.
However, the veracity of these May 2013 elections is in question and particularly PTI alleges that massive systematic rigging, engineered by PML-N, Geo TV and Ex-Chief Justice Iftikhar Chaudhry, took place in these elections.
PTI’s White Paper
If one gleans through PTI’s White Paper, containing their rigging accusations, one is confused to determine the systematic rigging that PTI is talking about.
In its dossier, PTI has questioned the neutrality of caretaker government on the basis that large scale of transfers and postings took place. However, they have failed to establish the impact of such transfers and postings on the election process as a whole.
Similarly, they have questioned the role of caretaker Punjab Chief Minister, Najam Sethi, mainly on the basis that he was appointed Pakistan Cricket Board (PCB) Chairman after the elections. It may very well be that granting him of a lucrative position is a part of a game plan, as PTI alleges, but is it safe to question the whole election process merely on the basis of an assumption?
Furthermore, PTI has raised doubts over the independence of Election Commission of Pakistan and Returning Officers, but again, they failed to give any substantive reasons for their accusations. What they mainly say is that polling stations were changed on election days and there was no finalization of polling schemes before 15 days.
They have also alleged in their paper that, in Punjab, patwaris and police were found campaigning for political party and that vast amount of public money from development projects were redirected to key constituencies. This again is without substantive evidence.
Role of media questioned
The role of media, particularly that of Geo TV, is also questioned on the basis that highest percentage of reporting was in relation to PML-N and there was less than one third of the overall coverage that highlighted PTI. If this is true then it may show, at the most, some bias towards PTI but is it good enough to establish systematic rigging?
Furthermore, PTI contends that Geo TV aired Nawaz Sharif’s speech at a time when the election results had not been fully counted. However, they have not established a link between speech and the alleged systematic rigging. All they say is that Nawaz Sharif’s speech influenced Returning Officers to change results but their assumption is not backed up by any coherent evidence except general accusation of rigging through stuffing of ballot boxes, impersonation and multiple votes being cast, preventing people from voting through coercion, deliberate incorrect counting of votes and deliberate tampering with tabulation of results.
It is appreciated that PTI is basing their case of systematic rigging on the basis of irregularities found in a number of individual cases quoted in their dossier but, firstly, those irregularities have to be decided by the election tribunals and secondly, without showing a systematic corruption, just calling the whole election into dispute based upon those individual cases would not meet the criteria of justice.
Chief Justice criticised
PTI has also started accusing former Chief Justice Iftikhar Muhammad Chaudhry of being involved in election rigging. This was even before the appointment of his son, Arsalan Iftikhar, as vice chairman Board of Investment Balochistan. Such accusation is not mentioned in their White Paper and apparently their allegation against Iftikhar Muhammad Chaudhry is based upon an address that he made to the Returning Officers. In this regard, the only thing mentioned in dossier is part of Ex-chief Justice address to Returning Officers: “As judicial officers, you are required to stand as a shield against all unjust or unfair means” without elaborating what sort of rigging they were associating to the then Chief Justice of Pakistan.
Since the appointment of Arsalan Iftikhar, it is being said that the Ex-Chief Justice has been rewarded for his services. Again, inferences are being drawn without a substantive piece of evidence.
Accusing head of the Judicial Institution without any coherent evidence is not a joke and potentially falls within the ambit of the Contempt of Court contrary to Article 204 of the Constitution of Pakistan, which says: “A Court shall have power to punish any person who scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge in relation to his office into hatred, ridicule or contempt.”
Imran Khan has already faced trouble upon using word ‘shameful’ towards judiciary and it was only after clarifying to the Supreme Court in August 2013 that he was only referring to Returning Officers, who do not fall within the definition of courts for the purposes of Contempt of Court, that the Supreme Court decided not to proceed with the Contempt proceedings.
Since Imran Khan has started alleging Iftikhar Chaudhry, who at the time was the Chief Justice of Pakistan, to be involved in the rigging, it raises questions as to whether or not Imran Khan sincerely made a statement before the Supreme Court in August 2013 that his word ‘shameful’ was only meant for Returning Officers.
The fact that Iftikhar Chaudhry is not Chief Justice anymore, in my opinion, it does not allow anyone to attribute any dishonesty towards him so casually for any matter whilst he was heading the Supreme Court as such accusation could potentially bring the whole Supreme Court into disrepute.
This does not mean that any accusation against a judge cannot be raised but it has to be raised with care and through proper channel where matter would be heard in light of evidences before giving a verdict on the conduct of the judge.
All these allegations raised by PTI, even if it is accepted that strong evidence exist to support their case, has to be determined by someone independent and such task is entrusted to the judiciary.
Provisions of election laws
The main provisions of election laws, dealing with the issues raised by PTI, are contained in the Constitution of Pakistan 1973 and the Representation of the People Act 1976 (ROPA).
By virtue of Article 225 of the Constitution, no election to a House or a Provincial Assembly can be called in question except by an election petition. To avoid any doubt, the Article 225 is reproduced here: “No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Parliament.”
It is, therefore, no doubt that it is only the election tribunal, which has the authority to deal with election disputes.
It is also here in Article 225 where answer lies to those who question Supreme Court for not taking the Suo Moto action in relation to their allegations of rigging.
When law has prescribed method to deal with a matter in a particular manner, as Article 225 has done in the matter of election disputes, then even the judiciary has no power to transgress its limits.
And sometimes people quote the Suo Moto Action taken by Supreme Court in relation to custom officials discovering two bottles of alcohol in order to justify the Suo Moto action in rigging accusations.
Without analyzing the scope of Suo Moto action, the important point to note is that in election disputes law has laid down the procedures to be followed whereas the Supreme Court took Suo Moto action for two bottles of alcohol because the woman in question was let go without any action taken by the concerned authorities and once this matter was highlighted in the newspapers that the Supreme Court took Suo Moto action and ensured that legal action was taken against her.
As far as election disputes are concerned, it is ROPA that provides mechanism for the appointment of election tribunals as well as procedures relating to the handling of election petitions wherein the election of winning candidate is challenged on a number of grounds, including election rigging.
In their White Paper, the PTI has given some case examples as part of their rigging case and most likely those cases would have been or are being tried by the election tribunals.
There are about 410 Election Petitions, which were submitted and, according to Free and Fair Election Network (FAFEN), 67% of election petitions have been disposed of and only 27% (109 out of 410) still await decisions and are still outside the 120 days limit set by the law to determine an election petition.
The Supreme Court has also, in a number of cases, directed the election tribunals to determine petitions within the stipulated time.
However, the important point to note is that it’s only in the recent years that the trend of challenging elections, through petitions, has gained pace and that is most probably after the issues of disqualification, on the basis of dual nationality and qualification, were highlighted by the supreme court.
Influx of election petitions
Therefore, with increased influx of the election petitions, it would probably not be possible for the election tribunals to deal with the election petitions within the specified time. However, it is encouraging to note that 67% of the election petitions have been determined and only 27% are still pending.
With such powers of the election tribunals to deal with election disputes and considering the progress that the election tribunals are making, it does not make sense for the PTI to threaten a long march on the basis of rigging issue.
It is also important to note that out of 410 election petitions, only 58 petitions have been filed by the PTI and that makes only 14% of the election petitions. The election petitions filed by independent candidates, PML-N and PPP are 99, 66 and 50 respectively.
The four constituencies
PTI has also demanded thumb verification in four constituencies including NA-110, NA-122, NA-125 and NA-154 and in this regard they approached Supreme Court as well and I believe this matter is still pending at Court but it appears from the Supreme Court hearing of 17 December 2013 that the Court was reluctant to interfere with the working and powers of Election Tribunals as per Article 225 of the Constitution of Pakistan.
When the law is absolutely clear about election disputes and election petitions are being dealt with by the election tribunals and parties can appeal to Supreme Court as well, if they are not satisfied with the Tribunal’s decision, Imran Khan’s threat, though which he withdrew later on, to dissolve Khyber Pakhtunkhwa (KPK) government is beyond reason.
When it is absolutely clear that it is only the Election Tribunal that has the powers to address PTI’s rigging issues then it is also beyond apprehension that why PTI has threatened a ‘Tsunami March’, particularly when country is almost in a state of war, on the basis of rigging issue when, legally speaking, Government has no authority on the matter.
‘Tsunami March’ justified?
Even if the Government had prerogative to deal with election disputes, the PTI’s approach of ‘Tsunami March’ is not justified at all when it is only 14% of the election petitions that they have challenged.
Leaving government aside, PTI’s approach shows that they have no respect for the judicial institution as well and by using their constitutional right to protest on the basis of a non-issue, PTI is doing nothing but to weaken the institutions.
And in this regard, there appears to be no difference between PTI and Dr Tahirul Qadri who also talks about revolution through marches.
PTI is taking all that pain for verifying votes in four constituencies, as they want to make them a test case and prove massive rigging across the board on that basis.
Assuming that verification results in these four constituencies do show massive irregularities then are we saying that just on the basis of these four constituencies the whole election of both National and Provincial assemblies would be put into doubt?
A bad precedent
And if so, are we not going to set a bad precedent whereby, in future, any political party would select just four constituencies and subject to irregularities found in them the whole of election would be undermined?
PTI may be able to hold a massive rally but it would not be in the interest of country at all as it would only weaken the institutions and would help the extra-constitutional forces to derail the democratic process. Therefore, it could be said that the PTI’s rally would be a threat to the democracy.
It is also important to mention that no doubt that FAFEN has identified some irregularities in 2013 General Election but not to the extent that justifies PTI’s approach of ‘Tsunami March’.
Contrary to PTI’s own White Paper
PTI’s such approach is also contradictory to their stand mentioned in their White Paper:
“The election took place in a grave national situation especially with looming crises of the economy and terrorism. In addition, this was the first democratic transfer of power from one elected government to another, and PTI did not want to derail the democratic process. These conclusions led PTI to accept the electoral results with reservations but on no count did or will PTI accept the rigging and allow it to go unchallenged. Because PTI seeks to strengthen the institutions of the country it has chosen to exercise its right to seek redress to electoral wrongdoing by approaching the concerned institutions to seek justice to right the wrongs committed against the PTI candidates and the nation as a whole. PTI was in the forefront of the struggle for the Independence of the Judiciary and it legitimately has high expectation of Justice from it also.
By seeking to get a sampling only of thumbprint verifications from NADRA for four constituencies only (PTI Petition for thumbprint verification Annex AY), PTI is wanting to establish the veracity of its claims that massive rigging took place which helped alter the electoral results. This is not to seek to overturn the elections as a whole but to ensure that such malpractices do not occur for the future. This is essential if we are to strengthen the democratic culture in this country.”
Even PTI has quoted the findings of PILDAT, which emphasis the importance of rule of law, in its introduction of White Paper as: “A few years ago, we published a paper on the subject of rigging and stealing election. This study had demonstrated that eight elections in Pakistan beginning the first one in 1970 and the eighth election in 2008 were flawed by one or more of the forms of rigging: pre-poll, polling day and post-poll. Our conclusion was that the problem of corruption in democracy goes beyond election. It is indeed rooted in the acceptability of democracy without rule of law.”
It is only by showing confidence in the judicial system and strengthening the judiciary that the rule of law will be established in the country. By ignoring the legal routes and taking matters out on street will only create chaos and derail the democratic process.
I leave it to readers to form their own opinion on PTI’s planned march. Your comments are welcome, below.
An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.