Imbalanced Probabilities & Inconvenient Truths: the Judicial Commission’s Final Report

This past week, the Judicial Commission established pursuant to an agreement in part between Pakistan Tehreek-e-Insaf (PTI) and Pakistan Muslim League (Nawaz) (PMLN) released its final report regarding the 2013 elections. The much-anticipated report appears to vindicate PMLN and though the Commission waves the proverbial stern finger at the Election Commission of Pakistan (ECP), it found the 2013 elections to be conducted fairly and in accordance with the law.

The Commission itself makes clear that it is not a court of law, nor are its decisions legally binding. This final report, however, does have political weight, due in large part to the statements of PTI and other petitioners regarding their acceptance of the Commission’s findings. What then remains to be said about the final verdict?

As an ad hoc legal body, the Commission was not required to operate under a set of pre-fabricated norms. Though the options for a potential procedural framework were not so liberal as to include lets say a gladiator style cage match between petitioners, the Commission did have some leeway in selecting the parameters of the procedure they eventually followed. The prime example of this choice was the standard of proof determined by the Commission, which chose the balance of probabilities standard as most appropriate.

The balance of probabilities standard is also commonly referred to as the preponderance of the evidence standard and it essentially requires a determination that the matter at hand is more likely than not, true. To put it simply, there is a greater than 50% chance that the evidence indicates that something is true than not true. Thus, for PTI to ostensibly be victorious in these proceedings, it would have to be demonstrated that it is more likely true than not true that the elections were not fair and were not conducted in accordance with the law.

That being said, the Commission qualifies their selection of the preponderance standard by adding that the evidence must also be considered by “at the same time taking account of the fact that within that standard there must be the more cogent evidence if the consequences of the findings are likely to be more severe to individuals or the Governance of the State.” This vague qualifier tacked on to the preponderance standard may be interpreted perhaps in several ways, none of which reflect well on the soundness of the Commission’s method of reasoning in reaching the conclusions that the elections were ultimately fair and in accordance with the law.

First, if the consequences were used as part of the balance of probabilities to determine whether the petitioner’s proposition is more true than not true, then it appears substantially likely that the evidence itself may not have had significant relevance in light of the fact that an entire national election may be overturned. In essence, the consequences were balanced rather than the probability that the evidence presented was true or not true. Second, it is entirely possible that the Commission intended to use, not the balance of probabilities standard, but rather a higher standard of proof known as clear and convincing evidence. To meet this standard, the probability that something is true must be significantly higher than its not being true. Though not as elevated as the proof beyond a reasonable doubt standard, clear and convincing evidence requires a substantial demonstration of the likelihood that a proposition is true as opposed to not true. If this was the standard that was intended for use during the Commission’s proceedings, it is perhaps misleading at best that this standard was not made more apparent. Third, the demonstrable vagueness in the qualifying statement and the avoidance of the clear and convincing evidence standard suggests that perhaps the calculations of the evidence were intentionally murkier. Without an expressly clear standard by which to judge the evidence presented, there is greater margin to selectively employ one standard over another, between preponderance and clear and convincing evidence, as may be suitable.

With this ambiguous standard in place, the evidence presented by PTI and similarly situated parties was evaluated. For the most part, the evidence was repurposed as an indictment of the ECP and attributed to the institution’s “shortcomings.” Keeping in mind the Terms of Reference (TORs):

3(a): Whether or not the general elections 2013 were organized and conducted impartially, honestly, fairly, justly and in accordance with the law;

3(b): Whether or not the general elections 2013 were manipulated or influenced pursuant to a systematic effort by design by any one?

3(c): Whether or not the results of the general elections 2013 on an overall basis are a true and fair reflection of the mandate given by the electorate?

From the hiring of extra personnel outside of accepted protocol, to the printing of substantially excessive ballots far beyond the requirement and in accordance with no uniform formula, to the absence of legally required forms in a significant number of ballot bags, the ECP alone is considered to be negligent, ill-coordinated and insufficient in training its employees. Despite the fact that based on the constituencies examined the Commission found that “The manner in which the polling bags were stored in the treasuries […] also tends to suggest that such Forms may have been misplaced or interfered with whilst in storage,” the TORs were satisfied in default favor of the victorious party. In other words, in a simple balance of probabilities, none of these ECP-attributed shortcomings individually was able to satisfy the notion that it was more true than not true that the elections were not fair and not in accordance with the law. Despite fourteen consecutive pages of discussion on the inability of the ECP to conduct proper elections, along with countless other mentions throughout the report of the institution’s “shortcomings,” the scales were never tipped in favor of the probability that it is more true than not true that the elections were not conducted properly.

The ECP’s shortcomings, as they are so cavalierly termed, are also treated as mutually exclusive from the possibility of pre-election day or election day corruption by the victors. Even the possibility of collusion, direct or indirect, between the ECP and any particular party is not addressed. What the Commission instead scours for is evidence of systematic rigging, as per TOR 3(b). The term “systematic” is not synonymous with universal or all encompassing. It involves something planned or methodical and organized. To question whether there was systematic rigging organized predominantly by one party does not mean that one form of election rigging or questionable activity or even a small cross-section of such indicators should be apparent across the board. Against the preponderance standard, the Commission needed only assess if it was more probable than not that there were enough discrepancies to answer in the negative for TORs 3(a) and 3(c), if not also 3(b).

The Commission was searching, however, for the smoking gun. The report is peppered with the logic that a “particular nexus” must exist between singular forms of rigging and the constituencies from which PMLN won their seats. Alas, such conclusive evidence never materialized in the eyes of the Commission and thus the clear and convincing evidence standard, clandestinely employed, is not met.

Where Form XVs were absent and ballots could not be entirely accounted for, the Commission turned to assess the likelihood that such ballots were misused. Once again, the preponderance standard is dismissed in favor of a more stringent requirement in evaluations of indirect or circumstantial evidence. The Commission states that when “all the established relevant facts are considered together they must lead to the inference that only one possible conclusion can be reached.” This method of evaluation is not mandated; rather, it is a self-imposed restriction from the Commission that once again undermines use of the preponderance standard. In fact, this requirement of all or nothing seems to reside somewhere closer to a beyond a reasonable doubt standard often employed in criminal adjudication. The Commission reasons that this all or nothing threshold is supported by the notion that conclusions in these matters cannot be “made in an arbitrary manner or based on mere suspicions.” In actuality, the evidence of whether the unaccounted for ballots were misused should, again, adhere to whether it was more probable or not that they were misused. This sliding scale evaluation allows the balancing test surrounding whether or not the unaccounted ballots were misused to collapse if even more than one possibility as to their use exists. The Commission says as much in Paragraph 608. The Commission was not able to find misuse of the missing ballots on the part of PMLN because there was more than one possibility as to their use and thus the issue is not proven beyond a reasonable doubt. This leaves no room for a balancing of probabilities in determining the legitimacy of the evidence.

The legitimacy of the Commission’s conclusions, or lack there of, is not the matter at hand. Deep concern for the potential fallout from this decision is reflected throughout this report and it derails the self-imposed balance of probabilities standard in favor of whatever seems to fend off a finding that the elections were in fact conducted in a manner grossly distinct from the standards required. The decision may also set a troubling precedent for future elections that only mass and obvious rigging substantially attributable to one party is enough to trigger a re-election this far into the term; thus, a little rigging hurts no one and may be attributed casually to the incompetency of a federal institution placed at the helm of such elections. If the preponderance standard were uniformly applied throughout, the balancing test would amount to something like this trade-off in metaphors. If some of the milk is spoiled, is it all spoiled and thus the Commission’s findings were inconsistent with the evidence presented or were the “shortcomings” identified within the report only a benign wart on an otherwise pristine election cycle, a cosmetic issue unworthy of reexamination.