Seven months after the Azadi March set off, the leaders of the Pakistan Tehreek-i-Insaf (PTI) are finally claiming victory with the Memorandum of Understanding and Accord signed on April 1 between PTI and the Pakistan Muslim League-Nawaz (PML-N). Vice Chairman, Shah Mahmood Qureshi, enthused on Twitter: “This historical move will provide the road map for independent, free and fair elections in Pakistan.”
Given such sentiments, it’s worth analysing the MoU to determine whether the two parties have, in fact, cracked the code to free and fair elections, or if the PTI has caved in and settled for face-saving.
As is common knowledge, the MoU states that a commission will be constituted of three serving Supreme Court judges. The critical feature of the MoU, and what appears to have been its most prickly issue, is however the third clause.
It states that the judicial commission will be established to determine three questions:
- Were the 2013 elections conducted impartially, honestly, fairly and in accordance with law?
- Were the 2013 elections manipulated pursuant to a systematic effort or design?
- Do the results reflect the true mandate of the electorate on an overall basis?
Clause 4.1 provides that if the commission concludes that the results of the elections do not represent the true and fair mandate of the electorate, the prime minister will dissolve the National Assembly under Article 58(1) of the Constitution and fresh elections will be conducted under a caretaker government, which will be appointed in consultation with the PTI.
Clause 4.1 also states that the provincial assemblies will also simultaneously be dissolved under Article 112 of the Constitution.
If, on the other hand, the commission decides that the results of the general elections were a true and fair reflection of the electorate’s mandate, clause 4.2 states that the PTI will withdraw its allegations and the national and provincial assemblies will continue to function in accordance with the constitution.
For the establishment of the commission and specifying its scope and powers, the PML-N has agreed in the MoU to promulgate the General Elections 2013 Inquiry Commission Ordinance 2015.
On the face of it, the MoU is a flat-out victory for the PTI; PML-N faces the noose if the allegations of rigging are proven correct by the commission whereas the PTI has the meek obligation to withdraw its allegations and support the democratic process, if they are not.
But, what is it again that the two parties have agreed on?
That the prime minister will dissolve the National Assembly “if the commission determines that the results of the 2013 GE, on an overall basis, are not a true and fair reflection of the mandate given by the electorate with respect to the 2013 GE.”
Rare is it that one will stumble upon a more mystic condition in an agreement.
What is even meant by the true and fair reflection of the mandate given by the electorate?
How does one determine it?
Is it the success of public rallies?
Is it opinion polls?
All other things being equal, that is precisely what the results of general elections are designed to deliver.
Also read: Is the judicial commission ‘constitutional’?
Commissioning Supreme Court judges — who decide disputes on the basis of written text, case law and evidence — to perform such a task is the equivalent of asking a surgeon to perform a life-saving procedure in the dark, with the entire country watching.
The first task for the commission is therefore a formidable one; to define what is meant by “the true and fair mandate of the electorate.”
This will inevitably also require the commission to develop a test to determine whether the 2013 election results satisfy this condition.
Let’s assume that the commission miraculously gets past these hurdles and concludes that the 2013 election results do not reflect the true and fair mandate of the electorate. This brings us to another puzzling aspect of the MoU.
The MoU clearly states that the prime minister will, in such circumstances, be obliged to dissolve the National Assembly under Article 58(1) of the Constitution. Practically speaking, this means that Nawaz Sharif will advise the president to prematurely dissolve his own government.
For a moment, let’s assume that that too happens. The MoU then states that general elections will be conducted again under a caretaker government.
Déjà vu; throwback to March 2013 — a swanky new caretaker government takes charge, a historic general election on the horizon.
In the years and months that passed since, amidst momentous victories and dharnas, one constant has remained – the passivity of electoral reform. Election laws and procedure remain untouched.
Thus, in the extraordinary event that PTI gets everything it wants from the commission, the same parties will contest the same elections, in exactly the same manner.
There’s a question that cries out for an answer: how will it be any different this time around?
Is the ECP suddenly more credible than before? If the PML-N wins again, will the conspiracies and allegations resurface? Will another commission be established to investigate rigging?
Maligning the allegedly rotten system as it did, the PTI should have made every possible effort to ensure that the failures of the previous general elections were learnt and remedied before the next one.
That is how systems are improved, and free and fair elections are achieved. With its star power and 'Naya Pakistan' rhetoric, it should have been the party to lead this process. In these circumstances, PTI’s boycott of the electoral reforms committee is nothing short of criminal.
Alas, the party instead decided to spend seven months calling for a revolution, resignations and re-elections. And what did it get?
An MoU on April Fool’s Day.
The writer is a lawyer at Ebrahim Hosain. He was an advisor to Justice (retd) Fakhruddin G Ebrahim during his tenure as CEC from July 2012 to July 2013.