Is The Judicial Commission Constitutional?

No election in Pakistan’s recent history has been shrouded more in controversy than the general elections 2013 (GE 2013).

Allegations of rigging, malpractices, negligence and irregularities have snatched much credibility from GE 2013. Political parties, Election Commission of Pakistan (ECP), judiciary and the executive; everyone’s role is marred by allegations and revelations. The staunchest stance on rigging was taken by Pakistan Tehrik-e-Insaf (PTI). Their sit-ins and protests culminated in the establishment of a judicial commission (the Commission) tasked with probing into the allegations of rigging and malpractices in GE 2013.

Ever since the demand for a commission was first put forward by PTI, it has been subject of much legal debate. Now after establishment of the Commission, many legal and political circles continue to ponder and debate over the Commission’s constitutionality. In this piece I intend to look into the legality of the Commission.

Opponents of the Commission – those who believe it is unconstitutional – most commonly rely on Article 225 of the Constitution of Pakistan, 1973 (the Constitution); which in their opinion bars jurisdiction of any court and judicial forum, except that of an election tribunal, to adjudicate upon election disputes. Article 225, for the purposes of clarity, is reproduced below;

“No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of [Majlis-e-shoora (Parliament)].”

Relevant ‘Act of Parliament’ here, is the Representation of Peoples Act, 1976 (the Act). Chapter 7 wherein, deals with election disputes and their resolution through election tribunals set up under Section 57 of the Act.

Article 225 is thus believed to have given exclusive jurisdiction over election disputes to the election tribunals set up under the Act. In these circumstances, can the Commission take cognizance of any dispute relating to the GE 2013, irregularities of ECP and NADRA included?

The answer to this question, in my humble legal opinion, is yes.

First off, Article 225 does not specifically talk about collective disputes, or a dispute of a generic nature involving more than one constituencies. It is clear from a bare reading of the Article that it addresses election disputes that pertain to a single constituency. For such disputes, the Act is in place and gives exclusive jurisdiction to election tribunals.

What then is the procedure for a dispute pertaining to constituencies of an entire division, or a province? What if a district returning officer is guilty of mal practices that amount to unfair practices leading to a rigged election in an entire district? Are the Act and Constitution silent for such a scenario?

Political parties have more or less alleged just that in matter of GE 2013. It has been alleged that large scale irregularities and malpractices have lead to an unfair, nontransparent elections. So should the aggrieved parties have gone for individual election petitions for every single constituency? This would have resulted in a bulk of litigation, over worked tribunals and probably delayed justice.

Wasn’t it then prudent to find a way around? A solution that is not unconstitutional but only extra constitutional, if that; to collectively adjudicate upon allegations of rigging in GE 2013 through a judicial commission established by way of an ordinance.

There is the argument that Article 225 its self allows for formation of a forum to adjudicate upon such matters.

The Commission has been established by way of an Ordinance: General Elections 2013 Inquiry Commission Ordinance of 2015.

Article 89 of the Constitution gives the President powers to promulgate an ordinance. Clause (2) of said Article bestows, on such ordinance, the same force and effect as that of an Act of Parliament. Hence the Commission formed under a Presidential ordinance is a tribunal established, for all legal purposes, under an Act of Parliament, and is thus a legitimate forum for inquiry into allegations of a generic nature pertaining to GE 2013.

It is pertinent to note that individual elections petitions, under the Act, continue to be heard by election tribunals.

Thus in my opinion, there is nothing unconstitutional about the Commission. It is a precedent now set that addresses a situation previously not catered for by the Constitution.

Zafar Zulqarnain Sahi

Author: Zafar Zulqarnain Sahi

The writer is a lawyer by profession. He is a Gold Medalist in LLB from Punjab University and has a LLM degree from University of Warwick, UK. He is also a former Member Provincial Assembly of Punjab (2008-2013).