Mamnoon Hussain, President Elect

By Humayun Gauhar 

So much happened the last week that media are in frenzy, Gotham agog – The Good (Kerry’s visit), The Bad (the controversies engendered by the president’s election) and The Ugly (the terrorist attack on D. I. Khan Jail). Add to it ‘The Confusing’ (the contempt notice to Imran Khan) and we cover the entire spectrum of possibilities, all while the country get hurtles towards perihelion – the point in orbit nearest to the sun where its gravity can either sling you into space and higher things or burn you to nothing. This week we will focus on ‘Bad’ and ‘Confusion’.

The unnecessarily controversial presidential election, boycotted by the People’s Party and its allies and roundly criticized by most media, caused the Chief Election Commissioner (CEC) to resign the next day adding credence to the suspicion that there was something nefarious afoot. Imran Khan said that the May 11 elections were also rigged with the involvement of the judiciary. He called it “shameful”. The Supreme Court (SC) charged him for contempt but he refused to apologize at the first hearing, his jet-lagged lawyer saying that he had helped to restore the sacked judges and had targeted only the returning officers in the general elections and not the judiciary, which he held in high esteem. But as officers of lower courts, returning officers are part of the judiciary, as too are the Supreme and High Courts, so that argument is somewhat lame. The judiciary is everywhere: the Election Commission of Pakistan (ECP) comprises four retired provincial high court judges and is chaired by a retired Supreme Court judge, the caretaker prime minister was a judge, the Appellate Tribunals comprised Sessions Court judges given high court status and the court of final appeal is obviously the Supreme Court. The judiciary certainly is everywhere.

The Supreme Court unwittingly started the mess when it allegedly went beyond its remit and ordered the ECP to bring forward the president’s election date from August 6 to July 30 and gave its own schedule on grounds of religiosity, not what is in the Quran, after the ECP had already to refused to change the date. Having refused, why did the ECP tell those who wanted date change to take up the matter up with the SC? Was the assumption that it too would refuse and indirectly ratify its own refusal as it were? Stupid.  But first we should know the law before holding forth on it.

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We have a National Judicial Policy 2009 (NJP) made by a National Judicial Policy Making Committee (NJPMC) then comprising its chairman the Chief Justice of Pakistan (CJP), the chief justices of the four provincial high courts and the chief justice of the Federal Shariat Court. The chief justice of the Islamabad high court has now been added. Under the heading “Independence of Judiciary” Point 6 states, incorrect grammar and all in all quotations that follow notwithstanding:

“In future the judiciary would avoid its involvement in the conduct of elections, as it distracts the judicial officers from professional duty and complaints of corrupt practices tarnish the image of judiciary.

“The reputation of judiciary is at stake during election due to involvement of vested interests groups, etc in corrupt practices.            On the other hand, it also adversely affects the judicial functions of the courts. Even otherwise, the Conduct of General Elections Order 2002, Representation of the People Act, 1976 and Local Government Ordinance 2001 do not contain any provision which requires that the elections are to be held under the supervision of the Judiciary. Therefore, in future, the Judiciary should remain aloof from the process of election to focus on disposal of cases. However, in case of request from the Government, the NJPMC would decide the extent to which and form of help to be extended to Government in the conduct of elections. The judiciary will continue to extend support and cooperation in adjudication of election related disputes/complaints as provided under the law.”

But far from remaining “aloof” in the May 11 general elections the judiciary went beyond its policy to only “extend support and cooperation in adjudication of election related disputes/complaints as provided under the law.” It virtually conducted the elections. Was there some reversal of this “aloof” policy later?

According to its press release, the NJPMC met on November 17, 2012 “to consider the request of Election Commission of Pakistan regarding appointment of judicial officers as District Returning Officer and Returning Officer in the light of comments by offered by the Elections Commission of Pakistan on the points raised by the Committee in its last meeting held on 03-11-12 at Lahore.” (I can’t find the minutes of that meeting). The meeting was brief by Ishtiaq Ahmed Khan, Secretary ECP. The press release went on: “The Committee considered the replies furnished by the Election Commission of Pakistan and observed that though overall responsibility of holding election in a free and fair manner is the constitutional mandate [Article 218 (3) of the Election Commission of Pakistan to and to achieve this object the Election Commission needs institutional support / strength. Therefore, after deliberations, the National Judicial (Policy Making) Committee agreed to relax the restriction in supreme national interest on involvement of judiciary in the election process only for one time during the forthcoming general elections and decided to provide services of adequate number of judicial officers to the Election Commission for their appointment as District Returning Officer and Returning Officer in the forthcoming general elections. The Committee observed that since the administration is the prime responsibility of judiciary; therefore, the judicial officers so appointed as District Returning Officer and Returning Officer should do their routine judicial work and should perform election duties in extra hours in morning and evening so that the litigant should not suffer.” How considerate.

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So the ECP asked for it. The Election Commission should have sought review of the SC order on grounds that it went against agreed procedure. Apparently the CEC wanted to but was overruled by the majority.

It was only a one-time “relaxation” in the “supreme national interest”; the policy didn’t change. This “supreme national interest” argument is disturbingly close to the much-reviled ‘Doctrine of Necessity’ – there was a coup “in supreme national interest…since [the defence of the country] is the prime responsibility of the [military].” In any case, what is in the “supreme national interest” and what is not is a value judgment. Is killing goats in the “supreme national interest” because unlike sheep they pull grass out by its roots and are denuding our grassland and causing soil erosion?

When an inept executive discovered the presidential election fell too close to Eid ul Fitr, it asked the ECP to bring the date forward. The ECP too should have thought about it earlier. When it refused the chairman of the ruling PML-N petitioned the SC. Instead of throwing the petition out the SC accepted the request with alacrity without giving a hearing to the other candidates that due process demands. Worse, it did so on grounds of religiosity that could be called specious, not on obligatory duties in the Quran and gave a new election date and schedule. That is seen to be going beyond the SC’s remit. The boycott of the PPP and withdrawal of its candidate eroded the election’s credibility – we now have one more ‘incredible’ president again. Controversy started. The alleged rigging of the May 11 general elections raised its head again: it could not have happened without the involvement or negligence of the returning officers said Imran Khan. He called it “shameful”. The SC slapped a contempt charge on him.

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The contempt case apparently revolves around the word “shameful”. ‘Shame’ falls upon a person or institution; “shameful” also falls upon the observer and even the entire community. ‘Shame’ also means modesty, as in hiding one’s shame. Was the conduct of the May 11 election “shameful”? If rigging can be proved, it doesn’t matter in how many constituencies, then it certainly is shameful. It would be best to let the contempt case proceed and let Imran Khan prove rigging or, better still, hold a high-level credible inquiry to determine the truth in the allegation and put the matter to rest once and for all. Pakistan cannot afford this.

The power and authority of the CEC has been diminished woefully by the stupid 18th and 20thAmendments. Calls to revisit them have started. His is only one of five votes in the Commission where the majority view prevails. The CEC doesn’t even have the veto. In resigning, he more or less accused some of his fellow commissioners of bias. They should all resign.

Now there’s another mess impending: without a chief election commissioner bye elections and local elections cannot be held, which suits some chief ministers. Will the National Judicial Policy be “relaxed” here too? I hope not.

This is far from complete. Next week we will look at contempt of court and see what our constitution says about it.

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