An Opportunity Lost
The judicial Commission was created pursuant to the General Elections 2013 Inquiry Commission Ordinance, 2015, to; “answer its TORs by uncovering its relevant facts”. To achieve this objective, the Commission was “not put in a straitjacket” and usual rules of procedure and evidence did not apply to it. Section 5 of the Ordinance empowered the Commission “to regulate its own procedure”. The wisdom behind aforementioned section was to enable the Commission to transcend hyper technicalities and be only driven by the spirit of substantive justice. The creation of such a Commission was unprecedented in our history. Absent any precedent or settled practice; the Commission, in addition to legal scholarship and knowledge of textbook law, had to take into account the relevant socio-political forces and the prevalent public opinion to arrive at its conclusion.
Alas! The Commission decided after hearing the parties that it would, after all, partially adopt rules of procedure and evidence. It adhered to civil standard of proof. In effect, anything that sounds like a duck, moves like a duck, looks like a duck, had to be proved, on the balance of probabilities i.e. more likely than not; it is actually a duck. Succeeding that, the Commission, since it had no precedent before it, also had to decide on the quantum of evidence i.e. how much evidence would constitute sufficient evidence such that, when “considered and compared with that opposed to it, has more convincing force, and produces in… minds belief that what is sought to be proved is more likely true than not true.” This was naturally going to be an inductive exercise employing interpretative latitude to specify the threshold evidence and then draw inferences from facts before the Commission. Inevitably the Commission as the proceedings went on, instead of focusing on substantive issues before it, went on a tangent route and triumphantly wedged itself in a “straitjacket”. This had a significant bearing on the final report of the Commission. For instance, 35% of missing Form XV (Ballot Paper Account which will essentially indicate number of ballots issued to each polling station and how these ballots were used) did not constitute sufficient evidence to prove elections were not conducted “impartially, honestly, fairly, justly and in accordance with law”.
The justification furnished to partially adopt and reject rules of procedure and evidence at the same time is circular. For instance, the Commission noted that it should be “guided by some of the principles contained in Qanun-e-Shahadut Order 1984. The Commission decided not to slavishly follow the Qanun e Shahadat Order 1984 when it was in the interest not to do so specifically where its strict application may hinder in uncovering of true facts.” There is an implicit admission by the Commission that rules of procedure and evidence may cloud its vision. In addition, nothing is as wide in its import and as imprecise in its connotation as the phrase “when it was in the interest [of justice]”. Its only conceivable parallel in the political arena levered to blatant abuse is “national interest”. The Commission ought to have been clearer in its approach. One cannot have the cake and save it too. The Commission instead of avoiding; needlessly lapsed into complex rules of procedure and evidence and did just what it had set out to avoid.
Our justice system like any other with its complex rules of procedure and evidence is designed for the lawyers –in this, the judges too can wriggle out of difficult situations justifying their conclusions often based on backward reasoning. The conclusions in final report of the Commission are obscured by rules of procedure and evidence. The Commission shifts back and forth in its reasoning, at times, rationalizing treatment of evidence by supposedly taking a “holistic” view. The lack of consistency in the report can be attributed to the vague procedure it decided to adopt. It made rules over and above ROPA (Representation of Peoples Act) that have no legal consequences. It condones ECP’s ( Election Commission Pakistan) “short comings”, its “failings” ,“irregularities”, “lack of planning” and “failure to comply with electoral laws” that “reflect[s] poorly on the ECP planning”. And gives its conclusions “notwithstanding the shortcomings of the ECP”, and “despite some lapses by the ECP” This is purely an Orwellian interpretation which in essence amounts to: some wrongs are bad in law while others are not.
The Commission as provided in the Ordinance was not the court of law. A threshold lower than balance of probabilities should have been adopted. Without any intricate technicalities; all that was required of the Commission was to be convinced of the truth of factual allegations based on objective grounds. Absolute certainty was not required. It was sufficient if the Commission had no serious doubt or any remaining doubt appeared insubstantial. Such a standard would have eliminated any threshold probability for the Commission to arrive at a conclusion that burden had been discharged. Similarly, the Commission should have either completed adopted the Qanun-e-Shahadat Order, 1984 or completely disregarded it. If it was not employed to test admissibility and relevancy of evidence, its application, and that too strict, should have been also disregarded on examination/cross examination of witnesses.
Final report in the political arena is for political actors to spin – noise. In that humbug, let’s hope PTI (Pakistan Tehreek-e-Insaf) does not lose perspective as there is sufficient material in the final report for PTI to lobby for appropriate electoral reforms. As for the ordinary voter, who came out on 11th day of May to exercise his fundamental right, and had hoped his vote would count if not matter, his dream lives on!