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WILL vying for instant solutions instead of lasting policy and institutional reform help save Pakistan? Agreed, for democracy to be credible we need the electoral process and its outcomes to be just, fair and honest. And for rule of law and constitutionalism to prosper we need a court system that is seen to be free from bias and producing results that are timely and consistent with established principles of equity and justice.
The Pakistan Tehreek-i-Insaf’s (PTI) gripe that it hasn’t been meted out justice by the electoral or the judicial system is serious. But it is the proposed (non)solutions in the face of perceived injustices that leave one wondering if Imran Khan’s personal frustration at not being prime minister (already) and his contempt for the Sharif brothers have gotten the better of his judgement or if PTI despite seeing itself as the harbinger for change simply lacks the vision to fix the mess we find ourselves in.
Imran Khan has reportedly declared that the Aug 14 long march can be suspended only if a three-member judicial commission under Chief Justice Nasirul Mulk investigates the election fraud and gives its findings in two weeks. Is PTI’s march really against the judiciary then, as my friend Saad Rasool argued in his column last week? If the Supreme Court aggrieves a political party, which principles of law, justice or democracy justify raising a mob to seek recompense?
Having named his party Tehreek-i-Insaf (movement for justice), does IK not realise that courts must be allowed to function without considerations of fear or favour? If PTI was wronged by the Iftikhar Chaudhry Supreme Court that is alleged to have been motivated by the consideration of favouring PML-N, can such wrong be righted by placing the present Supreme Court under the fear of a million man march? Is IK opposed to courts being drawn into the political thicket as a matter of principle, or only if done by a rival party?
Do IK and other thinking minds in the PTI (especially Asad Umar, Jehangir Tareen and Dr Alvi) not realise that blackmailing a court into meting out desirable outcomes is a perversion of justice? The litigation process is designed to produce winners and losers. Every time the court disposes of a matter at least one party is unhappy. What precedent is the PTI trying to set here? That if the court fails to dispense desirable justice till the exhaustion of patience of a litigating party it is fair game to bring out a mob to force the court’s hand?
Does the PTI not know that the Constitution holds the Election Commission responsible for holding free and fair elections and not the judiciary or the executive? That 60 days past the publication of returned candidates even the Election Commission cannot declare a poll void, and such authority vests exclusively in election tribunals? That the Supreme Court as the highest court of the land is not meant to be a trier of facts, and when such role was assumed by CJ Chaudhry it was seen as an abuse of authority and rightly so?
Does the PTI not know that appeals against election tribunal decisions lie before the Supreme Court under the Representation of Peoples Act, 1976, and it is thus undesirable for the court to pre-empt a trial or defeat the right of appeal by holding factual inquiries into allegations of election fraud in the exercise of suo moto powers (or under threat of a mob march)?
Has the PTI checked with Mr Hamid Khan if failure of election tribunals to render decisions within the four-month statutory period is a conspiracy against the PTI, or a manifestation of customary (even if abhorrent) delays in our justice system across Pakistan, including in PTI-led KP? If judicial delay is the festering endemic problem that it is, how can the PTI’s proposed solution be as vacuous as a long march?
Article 222 of the Constitution vests in parliament the legislative authority to deal with “doubts and disputes arising in connection with elections” and “corrupt practices and other offences in connection with elections”. In exercise of such power, parliament promulgated the Representation of Peoples Act, 1976. If this law now seems inadequate or ineffectual, where are the PTI’s proposed amendments?
The inordinate delays in our justice system leave thousands of citizens aggrieved on a daily basis. Has the PTI proposed any legislative measures at the centre or taken any executive measures within KP to address the crisis of our malfunctioning court system? Who is preventing it from passing laws to reform the judicial system in KP so that courts there stand in contrast to those in the rest of Pakistan?
The point is that sloganeering, censure or threats will not instigate the institutional and behavioral reforms we need in our electoral and justice sectors. Sustainable change needs serious painstaking work in its most mundane form. It doesn’t produce breaking news and its gratification is not instant. Led by pygmies, we in Pakistan have unfortunately begun to confuse rhetoric with reform and accusations and media trials with accountability and justice.
Electoral or judicial reforms are matters worth protesting and marching for, as contingent on them is the health and future of Pakistan’s democracy and rule of law. But will recount or reelection in four constituencies ensure that electronic voting gets introduced in Pakistan, or that returning officers in the next election are trained and independent, or that the machinery in place to address election disputes is credible and efficient?
Will the threat of a long march as a means of seeking justice bring us closer to the constitutional promise that courts shall treat all citizens equally (whether it is IK who is aggrieved or the average Joe) or will it further entrench the ‘ground reality’ that some, who are more equal than others, are to be treated preferentially? If PTI is genuinely interested in being the harbinger of change for Pakistan, it must get down to the nuts and bolts of policy reform and acquaint itself (and its supporters) with the idea of delayed gratification.
The writer is a lawyer.
Twitter: @babar_sattar
Published in Dawn, July 7th, 2014
