Sharafat A Chaudhry& Dr Ejaz Hussain
It is the judiciary that has been ridiculed and mocked due to the ill-informed stance of the general public
Ever since the General Election 2013 Inquiry Commission (GEIC) delivered its final report on the matters pertaining to massive rigging in the general elections of 2013 — as alleged by the Pakistan Tehreek-e-Insaaf (PTI) — it has invited unprecedented criticism and hatred directed towards Pakistan’s judicial system in general and superior judiciary in particular. The ill-informed and out of context revulsion against the judiciary in the social and electronic media is evident from the publication of photo-shopped material showing model Ayaan Ali, who was involved in a money laundering case, next to the Supreme Court (SC) building with slogans like ‘judge for sale’. Some have even named the SC building, which was also the seat of the commission, as ‘randi ka kotha’ (brothel).
Interestingly, 20 political parties appeared before the commission but, in general, the report of the commission has been much discussed by only two political parties: the PML-N and PTI, the two main conflicting parties in the matter before the commission. The PML-N is poking fun at the PTI and enjoying its victorious standpoint while the PTI has directed all its disgust and hatred towards members of the commission, though its social media team denied this allegation in a public statement. The critics of the Judicial Commission (JC) believe that “it has reassured all thugs that there never has been and will never be any accountability”. The allegations, in general, directed towards the judiciary may be summed up as: a) the judges are corrupt and justice is for sale, b) the judiciary is incompetent and the justice system is flawed, and c) the scope of inquiry intrusted to the commission was limited.
Much has been written and discussed during the last two weeks on the subject and, for sure, most of the comments floated hardly refer to the original text related to. This article will try to explain the matter through discourse analysis by referring to the original text related to the formation of the commission and the politics behind it. To begin with, the prolonged dharna (sit-in) right in front of the mighty buildings situated on Constitution Avenue and the PTI’s persistent agitation on the political front — though not illegal — resulted in a Memorandum of Understanding (MoU), accorded on April 1, 2015, between the PTI and PML-N to form a JC to inquire into whether the “overall results of the general election 2013 were affected to such an extent that same do not reflect the true will of the electorate”. Here, as per this accord, the phrase “overall results of general election” is of much importance, which encapsulates further proceedings in this regard. Consequently, the JC was constituted under the General Election 2013 Inquiry Commission Ordinance, 2015 “to inquire into the organisation and conduct of the general elections 2013 held on May 11, 2013”. Section Three of the Ordinance defines the scope of inquiry to be conducted by the commission. In this section, the clause (a) implicitly requires digging out the role of the Election Commission Pakistan (ECP) in organising and conducting elections as per required standards. The clause (b) of this section requires that the JC should look into whether anyone influenced the election results through “systematic effort by design”. The clause (c) requires the analysis of the “overall” results of the election.
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It took more than two months to finalise the text of the accord. The day, the words “overall” and “systematic effort by design” were included in the accord and in the ordinance, it became a triumph of the PML-N mainly on the basis of witty legal acumen. Consequently, the commission was bound to dig out only “systematic rigging” and design that affected the “overall” results of the elections of 2013 and the same was, for sure, out of question to find. Thus, one should be pretty clear on the scope of inquiry of the commission on how it was not limited by the commission but that the PTI leader contributed to this himself maybe to find a ‘reasonable’ way out to end his prolonged agitation.
The commission had ample power to examine and consider any document, material or evidence relating to the general elections of 2013 but the whole examination was confined by law to look into a particular pattern of illegalities that indicated rigging had been conducted in 849 NA and PA seats, which were the subject of the inquiry. The pattern of illegalities was insisted upon by the PTI, to be determined by “opening the bags” and examination of the form XV. Overall, 35.5 percent of the form XV were missing from the record. Ironically, 42.5 percent of the forms were missing from the records in Khyber Pakhtunkwa while in Punjab the statistic stood at 28.8 percent. The record could not reveal any specific pattern of rigging designed and utilised only in Punjab. The whole judicial system should not be affected under the influence of some social media war as people from different parties are presenting ‘testimonies’ to support their claims on their respective political parties’ pages.
The commission was empowered to proceed under both the Civil Procedure Code and Criminal Procedure Code, as per requirement. It is a worldly, recognised judicial system that shows the burden of proof in criminal cases rests on the state while in civil cases whoever alleges bears the burden of proving the allegation. As for the matter of the elections of 2013, it was up to the PTI to prove its allegations under the limits of the agreed accord and law, which it failed to do.
More confusion was created by Imran Khan’s statement that the JC’s report had been delivered to the PML-N causing discrimination against the PTI. Section seven of the GEIC Ordinance, 2015 states “The Commission shall submit its final report to the federal government within 45 days of its first meeting” and the final report shall be a public document. Hence, the commission, while delivering its report to the federal government, i.e. the PML-N, performed under the law. The hue and cry raised by the PTI leadership on this issue was surely a political move to keep its workers spirited.
On the political front, all are winners except the judiciary. The PTI is now propagating the shortcomings of the ECP. The PML-N can enjoy the certified right to rule and mock the PTI’s claims of rigging. The military, in the meantime, may find enough time to improve its image among the masses by possibly gaining the support of conflicting political parties and consolidating its role as arbiter. However, on the public front, it is the judiciary that has been ridiculed and mocked due to the ill-informed stance of the general public.
Last but not least, there is good news for Facebook-based legal experts: the commission of inquiry is not a court of law. Its findings have no legally binding effect nor are they enforceable in any court of law although they have moral and other implications. Under the proviso of section four (three) of the ordinance, any “fair comment made in good faith and in
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public interest on the final report after the completion of the inquiry shall not constitute contempt of the commission”, hence they may keep ridiculing the judiciary “in public interest”.