The Law In Pakistan

By Farhad Khan.

As Pakistan is heading towards General Elections to be held in 2018, it is a high time to assess one of the most important elements of the electoral process: the post-election dispute resolution mechanism. Human Rights Committee sets two indicators for building confidence of electors in the Election Commission: the free and fair conduct of elections and electors’ access to judicial review or equivalent process. An effective judicial remedy to electoral conflicts particularly the post-elections disputes brings accountability and hence increases the fairness of the electoral process. An effective Dispute Resolution System discourages the actors to go for corrupt practices. To achieve this element of trust, complaints and appeals processes have to satisfy at least three basic requirements: (1) speed, (2) transparency and (3) accessibility.

The law in Pakistan allows only the ‘candidate(s)’ to file complaints with the Secretary of the commission. And thus the law makes the Post-Elections Dispute Resolution System exclusive, as it does not allow the political parties, civil society organizations, voters and polling day staff members,who are the important stakeholders in the elections to file petitions with the commission against the irregularities in the electoral process. The ECP then forwards the petition to the concerned Election tribunal. In Pakistan the post-election disputes are decided by special election tribunals. Under Article 225 of the Constitution, election tribunals are the competent authority to hear election disputes. The ECP, in accordance with Section 57 of the Representation of the People Act 1976 (ROPA 1976), appoints as many tribunals as the commission feels necessary. The chief justice of the high courts in the concerned provinces, not the ECP, propose the judges for the tribunal.

Act, the Evidence Act, 1872 (I of 1872), shall apply for the trial of an election petition. The Tribunal has all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, (Act V of 1908). The tribunal hears a case on day to day basis and without adjourning a case for more than seven days and the petition would then be decided within 120 days after the day it receives the petition. However, in 2014, when Imran Khan was launching movement against alleged rigging in 2013 General Elections, FAFEN recorded 2,469 adjournments of the cases for more than seven days. If any of the party of the case is not satisfied with the tribunal‘s decision, s/he may take the case to the Supreme Court. However, there is no provision in the law which deals with writ petitions against interim orders of election tribunals or the timeframe for their disposal, if filed. As a result, the stay orders passed by high courts against the proceedings of the tribunals have continued for several months, delaying the disposal of petitions beyond the legally-stipulated deadline.

Lahore High Court provided stay order to Ayaz Sadiq against the proceedings of the Tribunal till November 20, 2014 and caused sufficient delay of the case. A senator of Pakistan People‘s Party, Adnan Khan, completed his six-year term in the Senate as a technocrat on a stay order from Peshawar High Court. The returning officer concerned bared him from contesting the Senate polls for being not qualified as a technocrat. The appellate tribunal comprising Justice Jehanzeb Raheem of the high court had also dismissed his appeal and maintained the decision of the returning officer on Feb 19, 2009. The tribunal had ruled that Mr. Adnan was hardly 34 and had got his Master‘s Degree from Preston University in 2001. The tribunal observed that Mr. Adnan had mentioned himself as a marketing consultant and keeping in view his 20 years’ experience he had started the said consultancy at the age of 14 when he had not passed even middle studies. Mr. Adnan challenged the orders of the returning officer and the appellate authority before the Peshawar High Court in the instant writ petition and also filed an application seeking suspension of the said orders. The court provided him with a stay order helping him complete his tenure as technocrat in the Senate of Pakistan. Against the stay order of Adnan, one of the contesting candidates, Ali Gohar, had filed an appeal with SC but it was dismissed by a three-member bench headed by the then controversial Chief Justice Abdul Hameed Dogar.

However, this tradition was brought to end when the Lahore High Court dismissed the petition filed by the Speaker of the National Assembly, Ayaz Sadiq against the order of the Election Tribunal pertaining to vote recount in NA-122. The Lahore High Court held that the decisions of election tribunals could only be challenged in SC. This decision would have an encouraging effect on the election-dispute resolution system in Pakistan in future. The shift in the judicial mindset could be attributed to the 126-days long and a strong protest by Imran Khan against rigging in 2013 General Elections.

Under section 52(2) of ROPA 1976, candidates have to file their petitions with the ECP within 45 days following the notification of the official gazette of the names of the returned candidates. The law does not set a time limit for the ECP to forward an election petition to a concerned tribunal. The law also does not specify a time limit for a petitioner to remove any objections raised by the ECP. The Elections were held on May 11, 2013 and the results were declared on May 22, 2013; however, two election petitions were received by the Lahore tribunal on January 29, 2014.

About Author:

Farhad Khan has done BS Political Science from University of Peshawar. Now, he is pursuing MPhil in Development Studies at Pakistan Institute of Development Economics, Islamabad. 

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