Published in the Express Tribune Blogs on the 9th of April, 2015.
Pakistan Tehrik e Insaf (PTI) and Pakistan Muslim League Nawaz (PMLN) finally reached an agreement over PTI’s long standing demand for establishing a Judicial Commission to probe the allegations of rigging in the general elections held in 2013.
Although it may seem a victory for PTI, it would probably turn out to be anything but. The news of PMLN giving in and agreeing to form a commission as per PTI’s demands implies that the see-saw has tilted Imran Khan’s way. But a thorough perusal of the Memorandum of Understanding and Accord (MOU) signed between the parties may depict a different picture where PMLN weighs heavier.
Despite Khan’s stern warning of reverting to protests if PMLN makes any alterations in the originally agreed upon memorandum; alterations have been made, no protests however.
In the original draft it was agreed that with the establishment of a special investigation team by the Commission, in pursuance of section 6(2) of the proposed Ordinance, the appointment of Director General Federal Investigation Agency will be made afresh in consultation with PTI, along with simultaneous appointments to the post of Chairman NADRA and Secretary Election Commission. The final shape of the MOU, however, contains clauses whereby PTI has surrendered its stance on Chairman NADRA and Secretary Election Commission of Pakistan (ECP) and accepted their appointments as valid. So the two mainly relevant institutions responsible for providing record to the Commission will continue to be run by appointees, of the PMLN government, who were earlier objected to by PTI.
Then there is the absence, or semi presence, of any time limit for concluding the inquiry. Opposed to earlier claims by PTI of making the commission bound to complete and conclude its inquiry within forty five days, the proposed ordinance in Section 7 contains the following words;
“….as expeditiously as possible and, preferably, within forty five days of its first meeting.”
Laws are supposed to be clear and unambiguous. A stipulation of any agreement, an Act or Ordinance is either binding on a party, or a person, or not binding. There is no such thing as semi-binding. The Commission formed in consequence of the proposed Ordinance is, therefore, not bound to submit its final report within forty five days. This allows for delays and presents opportunity for a deadlock.
The first delay may be in promulgation of the Ordinance, as the MOU does not contain any time frame for said promulgation. The intention of bringing the Ordinance as early as possible was only orally expressed by PMLN at the press conference. The first day has passed, Senate is in session and a joint session has been called for the 6th of April. And since an Ordinance cannot be promulgated when Parliament is in session, it will have to wait.
Next, there is also a probability of the Ordinance being challenged in courts, as barred by Article 225 of the Constitution, which bars all courts and judicial forums, except election tribunals, from adjudicating upon election disputes. There is also a question of the legality of forming an inquiry commission by way of an ordinance despite a legislated Act – The Pakistan Commissions of Inquiry Act of 1956 – being in place.
Then there are probable, potential delays after promulgation of the Ordinance and subsequent formation of the Commission. If the Commission decides to form a special investigation team in pursuance of Section 6(2) of the Ordinance, then there is the matter of appointment of DG FIA. In light of the MOU, said appointment is to be made by the government after due consultation with PTI. The time required for “due consultation” and consensus between PTI and PMLN can be anything ranging from two weeks to two years, judging by past record. This presents a very potent scenario for a deadlock.
The Commission is bound to seek record of elections, and voters, from the ECP and NADRA. Both of these institutions are expected to take their time in providing their records, since the Commission will be inquiring into the entire general elections all over Pakistan and not just a single constituency. Delay in providing record may be attributed to alleged directions from the sitting government, which may result in another battle between PMLN and PTI, and may even trigger withdrawal of the Ordinance.
Even if all of the above apprehensions and probabilities don’t materialize, there is still the question of what will it take from the Commission to give PTI what it wants: dissolution of the Assemblies and fresh elections?
The scope of inquiry for the Commission as contained in Section 3 of the Ordinance is;
“3.The Commission shall enquire into and determine whether or not:
(a) the 2013 GE were organised and conducted impartially, honestly, fairly, justly and in accordance with law; and
(b) the 2013 GE were manipulated or influenced pursuant to a systematic effort or by design by anyone; and
(c) the results of the 2013 GE, on an overall basis, are a true and fair reflection of the mandate given by the electorate. “
The words “on an overall basis” are very significant. The very same words have also been added to clause 4.1 of the MOU, where it says that the National and Provincial Assemblies will be dissolved and fresh elections held, if the Commission finds that the general elections 2013 do not reflect the true mandate of the electorate on an overall basis.
To conclude that the elections were rigged on an overall basis, the Commission will have to ascertain, in its final report, that there was planned rigging in the entire country or in a majority of constituencies. The fact that there were irregularities in the elections on a large scale, attributable to the ECP or NADRA, will not suffice.
If the commission finds any one or two, and not all, of the allegations within its scope of inquiry to be true, the words “on an overall basis” would then be subject to interpretation. From the text of the MOU it seems the Prime Minister will dissolve the assembly only if all the allegations are found true.
It is not clear whether PTI has let the see-saw tilt of its own accord, or if a third party has persuaded them to do so. It is highly improbable that PTI overlooked all these aspects of the MOU and Ordinance, along with changes made in the final draft. The fact that this MOU was signed on the 1st of April may also be of some significance.