BAD faith, in legal parlance, is an intentional dishonest act such as entering into an agreement without the intention to fulfil it. It is never desirable to be the harbinger of gloom and doom, but marred by bad faith the PML-N-PTI talks over forming a commission to inquire into electoral rigging are unlikely to end the existing logjam.

In the electoral inquiry debate, it is the ends that are sacrosanct for both parties, not principles. Both are trying to manipulate principles and tailor processes to realise their partisan ends. PML-N is loath to set in motion any inquiry that has the capability of formally robbing it of its mandate and ending its tenure before 2018. PTI is exclusively focused on mid-term polls and won’t accept any eventuality that leads to the government completing its term.

Also read: Govt, PTI engage in talks about talks

These goals seem carved in stone. Where is the room for a negotiated settlement then? Negotiations over the inquiry’s terms of reference are sticky because they will support the ends of one party or the other. PML-N doesn’t want a grand inquiry ruling on the validity of overall election results. Thus it sent a lame request to the chief justice to form a judicial commission with innocuous ToRs ie to investigate PTI’s allegation that former chief justice Iftikhar Chaudhry, Returning Officers, the ECP and caretakers conspired to steal the election.

With goals carved in stone, where is the room for a negotiated settlement?

PTI realises that weaving conspiracies and making wild allegations is easy. Proving them with evidence is not. Forget about our grand conspiracy, PTI seems to be saying now, and let’s have a full-fledged audit of the entire election. PTI wants an inquiry that will determine whether the votes polled in favour of the winning candidates can still be verified. And in the event that they can’t be verified, for the commission to declare that election 2013 was void.

Will the inquiry commission work with the assumption that all unverifiable votes are invalid? If votes cannot be verified in December 2014 because of illegible thumbprints or missing records, will the commission conclude that they weren’t validly cast in May 2013? Will the commission treat irregularity and invalidity as the same thing? Will the commission also rule on the overall impact of the alleged rigging ie whether or not PML-N would have been able to form government if results from controversial constituencies are disregarded?

These are some basic questions. How these and other questions are answered will promote the agenda of one party or the other. Setting the ToRs and the rules of this game is thus key. PTI wishes to start with the assumption that PML-N has a stolen mandate unless a forensic audit verifies today the votes that were cast for PML-N back in May 2013. PML-N wants to start with the assumption that its mandate is legitimate unless PTI can prove constituency-by-constituency that it got more votes than PML-N.

Rational PTI insiders suspect that results in some 30-odd constituencies might have been engineered. But PTI doesn’t want to get into the question of whether it would have been able to form government had it won all these controversial seats. Using exceptional samples to undermine the overall legitimacy of the 2013 election is what promotes PTI’s end goal of midterm election. And the last thing PML-N wants is to empower a commission authorised to pass substantive judgment over whether election 2013 was void as a whole.

PTI has no doubt that election 2013 was stolen by PML-N. It isn’t seeking the formation of a commission to test the veracity of its thesis, but to set in motion a process that leads to re-election. What if the commission concludes there were irregularities here and there but the election isn’t invalid as a whole? PTI believes that no honest commission can ever do so, ie it won’t accept an outcome other than the one it wants. And Imran Khan has said that notwithstanding commission findings PTI isn’t going back to parliament.

If the second-largest party in Pakistan is going to stay on the streets even after a commission gives Election 2013 a clean chit, this turmoil will continue. What if the commission unearths colossal illegalities? Will the commission’s findings be binding on the government? Will they automatically result in the dissolution of assemblies and a re-election? Even an inquiry report issued by a judicial commission comprising Supreme Court judges will only be a report and not a self-executory judicial order.

What that means is that a damning inquiry report will be a useful tool for PTI but not the end itself. PTI will still need to take the report to the Supreme Court and convince the court that it should exercise powers under Article 184(3) of the Constitution and declare election 2013 void as a whole and order re-election, disregarding provisions of Article 225 which states that no election can be called in question except through an election petition presented to an election tribunal.

Our Constitution doesn’t conceive of a situation where the entire election can be declared void (as opposed to ordering re-election in individual constituencies). PTI hopes that a roving inquiry, election audit and findings of the inquiry commission will further entrench its narrative that PML-N has usurped power. This together with mounting street pressure will create an untenable situation wherein either Nawaz Sharif will resign or the Supreme Court will feel pressured to throw PML-N out and order re-election.

Whether a clean election in 2013 could have produced a PTI government is now irrelevant. PTI believes, and not without reason, that it can emerge victorious in a midterm election in 2015. PML-N knows that it will be punished if a re-election is ordered today. Forming the commission and its ToRs is thus no academic exercise to find the truth about election 2013 or fix our electoral system. It is about whether PML-N stays in power till 2018 or PTI takes a shot at getting in the saddle in 2015.

There is no middle ground. We are about to see more political turmoil rampaging through a legal minefield. Brace up Pakistan.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn, December 15th, 2014