NEARLY two months after polling day, there seems to be no sign that the controversy raging over the integrity of general election 2024 will subside anytime soon.

PTI, the most aggrieved party, had started staging street protests against the alleged rigging of elections but the month of fasting has somewhat diminished the momentum for now. While the party intends to initiate a protest movement after Eid, it is making good use of the relative lull to agitate on the issue of election irregularities in the courts at home and at international fora abroad.

An application has been filed by the PTI in the Supreme Court for constituting a judicial commission of inquiry on general election 2024, while party sympathisers in the US scored a major point by lobbying Congressmen, which resulted in the convening of a hearing by a Congressional sub-committee on ‘Pakistan After the Election: Examining the Future of Democracy’. Mr Donald Lu, assistant secretary of state for South and Central Asian affairs, testified at the hearing.

Click to see more

He faced a number of tough questions from Congressmen about the recent Pakistani election and how the US government has reacted to it. Irrespective of what this hearing may eventually accomplish, the exercise has highlighted the PTI allegations about elections at an international forum and set the stage for its next phase of activities to protest against the alleged election irregularities.

In a normal democracy, there should be no need to launch a protest movement to resolve election disputes. It is natural that disputes arise in a competitive exercise like elections. Each democracy has devised a system of electoral dispute resolution. India leaves dispute resolution to its election commission during the poll cycle; the superior courts take up the complaints only after the election result is announced.

Unlike Pakistan, no separate election tribunals are constituted in India. Pakistan has a robust legal framework for electoral dispute resolution which, in some respects, is superior to the Indian system. Our Elections Act, 2017, provides for dedicated appellate tribunals mostly consisting of serving high court judges to hear appeals against the rejection or acceptance of nomination papers.

For deciding disputes on election results, Article 225 of the Constitution of Pakistan provides that no election to a House or provincial assembly shall be called into question except by an election petition presented to a tribunal. Election tribunals consisting of high court judges are constituted after the final result is notified and aggrieved candidates in the election can file petitions within 45 days after the notification of election results. These tribunals were given 120 days to decide all election petitions until August 2023 when the period to decide the petitions was extended to 180 days by parliament through an amendment.

It is another matter that in reality most tribunals take much longer to decide the petitions and some petitions remain pending even when the full five-year term of the assemblies comes to an end. This is where the otherwise fine legal framework falls flat, and with the inordinate delay, justice is denied in many cases. The candidates and political parties’ trust in the system of tribunals has therefore weakened over time.

In a normal democracy, there should be no need to launch protests to resolve poll disputes.

The chances of getting justice in cases relating to the 2024 general election through election tribunals has apparently become even more difficult because far fewer election tribunals have been constituted this time compared to past elections. Punjab is a case in point where more than 50 per cent of the election petitions are expected to be filed; however, only two election tribunals have been constituted compared to eight in 2018, five in 2013 and 12 in 2008.

Click to see more

There is an overall decline in the number of election tribunals as well. Sixteen tribunals have been constituted for the four provinces and Islamabad Capital Territory this time, compared to 21 in 2018, 14 in 2013 and 31 in 2008.

The relatively fewer tribunals in 2013 can be explained by the fact that retired judges were appointed as tribunals at that time to conduct the proceedings on a full-time basis compared to the case of serving judges in other elections where they are available only part-time. With far fewer tribunals, it is justified being sceptical about the timely conclusion of the proceedings on the election petitions and this is the main reason for frustration which may lead to agitation and street protests.

The lack of trust in receiving timely justice through the system of election tribunals had led to messy agitation after the general election of 2013. After a long march to Islamabad and a prolonged dharna in Islamabad in 2014, the PML-N government and the agitating PTI agreed to constitute a judicial commission of inquiry consisting of three Supreme Court judges and headed by the chief justice of Pakistan.

The commission was tasked to submit its final report ‘preferably’ within 45 days, but it took about three months to submit its conclusive findings. In this respect, the performance of the commission was still better than the almost open-ended process of the tribunals.

Click to see more

Pakistan is now faced with the choice of either substantially increasing the number of election tribunals so that all petitions, without exception, are decided within the allocated time of 180 days — this may require doubling the number of tribunals consisting of serving judges — and if that is not possible then supplementing them with retired judges after amending the Elections Act or constituting a judicial commission of inquiry on the lines of the commission constituted in 2015. Consensus by the government, its allies and the opposition is necessary to pass a law to constitute such a commission.

Strengthening and reforming the system of election tribunals is arguably preferable because this option is not only in line with the Constitution and the Elections Act, 2017, but also provides a long-term solution, instead of a one-time commission.

The writer is the president of Pakistan-based think tank, Pildat.

X: @ABMPildat

Published in Dawn, March 24th, 2024