Just before the ‘azadi march’, the prime minister announced the government’s intention to establish a commission, consisting of Supreme Court judges, to inquire into allegations by Pakistan Tehreek-i-Insaf (PTI) that the 2013 elections were rigged. The hope was that this would defuse the political crisis engulfing the country. Yet, the proposed ‘solution’ comes with its own set of problems.

First, an issue that could have led to strengthening of the political process will end up weakening it. When the allegations were first levelled, PML-N decided not to engage politically at all, stating that only election tribunals were an appropriate forum for these allegations. Yet, 14 months later — facing calls for resignation — suddenly an alternate forum has been conceived.

Instead, if at the very beginning the PML-N had engaged with PTI, they could have secured a guarantee that the overall election would not be questioned, that the findings from the four constituencies would be used to guide electoral reform and thus the political process would have produced meaningful outcomes. Yet now, once again, the Supreme Court has been asked to wade into a complete political thicket.

Second, the question that the court is being asked to answer is crucial. The court is not being asked whether there was rigging in the elections of 2013. It is being asked whether the ‘allegations’ levelled by the PTI that the elections were ‘manipulated or influenced by anyone for the benefit of a political party or individuals’ are true.

The Supreme Court has been asked to wade into a political thicket

In other words, please tell us if it is correct that your former chief justice, former judge Khalil-ur-Rehman Ramday, and former caretaker chief minister Najam Sethi etc were in cahoots with the PML-N. The Supreme Court will either have to implicate a former chief justice — who led the court for eight years and aggressively heard cases against a PPP government — as being a partisan person willing to rig elections; or it will have to exonerate them.

Given this background, even if they exonerate them, the PTI and its supporters will be able to claim that the court had its own interests to protect. It is a political thicket that will only tarnish the court.

Third, even if the terms of reference are changed so that the court is asked to inquire whether rigging took place and not the alleged role of people who may have influenced the elections, there are constitutional issues.

Article 225 of the Constitution provides that “no election” to a house, provincial assembly or the Senate shall be “called into question” except through an election petition, presented in such manner and to such tribunal as legislated by parliament.

This legislation has already taken place in the form of the Representation of People Act, 1976 under which election tribunals are functioning. The term “called into question” is crucial here. If the government is stating that the Supreme Court Commission is to be the final authority on whether rigging took place in the elections, and commits to abide by its decision, isn’t the entire election being “called into question”?

One could argue that Article 225 only refers to a specific election being challenged — and not a general inquiry into the elections. Yet, that ignores the fact that even a general inquiry would have to either ‘select’ a few constituencies or examine each constituency — therefore would have to give some finding as to those constituencies, and that would “call into question” those elections.

Thinking creatively, there could be two ways in which the bar under Article 225 could be avoided. First, the inquiry could be limited to examining the roles of specified individuals, including judges, without looking at any constituency — however, such an inquiry would need to be conducted by a neutral, non-judicial commission for obvious reasons. It might also be too narrow to satisfy the PTI.

Second, if the purpose of the commission is not to call into question the elections at all, but simply to conduct a fact-finding inquiry, the results of which are to guide future reform, it could arguably be justified as not being in violation of Article 225.

Other legal questions would remain. What would be the status of the inquiry in relation to existing election petitions? No agreement between the parties would be enforceable to prevent the other from using the commission report in their election petitions. Also, since inquiries are an essential executive function and the Constitution (Article 175) mandates separation of the executive and judicial functions, there is also an underlying separation of powers issue.

The essential problem is that while a fact-finding exercise — not calling the elections into question — could arguably be conducted; constitutionally, no ‘judicial’ finding can be given regarding an election except through an election petition. Politically, nothing less will suffice. Given that fact, the commission announced by the prime minister will raise more issues than it solves.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

Published in Dawn, August 19th, 2014