Analysing the Judicial Commission report

The election was compromised. That should invalidate the first TOR at the least, which in turn invalidates third TOR

This week saw the findings of the Judicial Commission (JC) made public after months of inquiry. It produced an eclectic mix of disappointment and confusion among thousands who were hoping for justice following the 2013 elections. The Commission identified numerous anomalies in the 2013 election process, and was quick to pick out someone to blame. In this case, it was the ECP. An examination of the ECP's perceived failings, according to the JC, reveals some very interesting details. The ineptitude of the ECP is unquestionable, perhaps exemplified by the fact that only four designated official printing presses were used, which were not sufficient. At the last minute, the production had to be outsourced to a new printing facility. This can be put down to either poor organisation or direct intervention and the JC declared that it was the former. Even if we accept that, it is not ideal. Pakistan seems to have an ECP that is either incompetent or irrelevant, a sad truth which was acknowledged by the JC. When considering the discrepancies between different ballot formulas being used in Punjab, the JC report stated, “The ECP either did not know about this or chose not to comment on it.” (Page 223, point 701)

However, was the ECP the only entity at fault? The lack of specialised equipment which would ensure forensic validity can also be attributed to poor planning. The development of a useless ink was deemed “an exercise in futility” and nothing more. The designated Results Management System was not deployed on Election Day. The ECP did not even have its own storage space for polling bags. The report states that post-election material is stored outside of the ECP’s custody and in highly inadequate conditions (page 212, point 684a-i). Storage space for polling bags is for the purpose of producing them as evidence when required and it was clearly extremely difficult to obtain any post-election material for analysis. The report further talked about the lack of ECP training and coordination as well as general disorganisation (page 217, point 685).

Despite the obvious issues with the ECP, it does not seem to be the sole cause of the irregularities in the 2013 elections and it is difficult to accept the JC's cast-iron 'case-closed' conclusion. Arguably, the most worrying part of the report was the disclosure of the numbers of excess ballot papers (again put down to the shortcomings of the ECP). The reason there was little uniformity between excess ballot papers in different constituencies across Pakistan was supposedly because of lack of communication of the “formula”. The instructions, as provided by the Action Plan, to order excess ballots, were not followed (page 211, point 684). The simple formula stipulated that the “number of ballot papers for each polling station will be rounded off to the next hundred” (page 173, point 574, viii, a). The report notes that the calculated amount using the formula was a far cry from the real numbers, particularly in Punjab, and this is attributed to poor communication. The excess as calculated by the Action Plan was supposed to be roughly 8% across Pakistan, but in constituencies in Balochistan, it was more than 10%. “It is unclear whether rounding up on a polling station-wise basis as per the instructions contained in the Action Plan was complied with” concluded the JC report (page 212, point 684b). To anyone with a basic understanding of arithmetic, it is clear that the Action Plan was not complied with, as 8% and 10% are two distinct figures. In fact, in NA-125, a figure of 28.1% extra ballot papers was quoted. How can the huge difference that is obviously there between 8% and 28% be “unclear” to the JC?

The report goes on to state that evidence was provided solely with respect to Punjab — Lahore in particular — Karachi and a “small part” of Balochistan. There was no evidence mentioned for Khyber-Pakhtunkhwa (K-P) where the PTI had won. Also, despite the previously discussed 10% excess ballot paper issue, the JC deemed the irregularities in the majority of Balochistan to be negligible, as well as those in Sindh. Therefore, the JC decided that evidence in these regions would be ignored and not factored into the conclusion (page 232, point 732). Most areas with 'irregularities' in the form of excess ballots were won by the PML-N. Take NA-130, Lahore, as an example. The returning officers (RO) stated that they had not received any guidelines and determined the need for ballot papers based on their own judgment. No one at a polling station should have the authority to request extra ballot papers. That was left to the Provincial Election Commissioner in constituencies in K-P. However, the RO at NA-130 decided to follow his own version of the formula; 238 polling stations with three booths each, equals 714 booths in total. After rounding this up, the RO somehow arrived at the figure of 74,000 extra ballots, which were requested for a constituency that had a turnout of approximately 150,000 (page 177, point 580). Sohail Shoukat Butt of the PML-N won NA-130 with approximately 88,000 votes. This is exactly double the 44,000 Samina Khalid Ghurki (PPP) received in the same constituency in the 2008 election. The voter turnout and margin of victory were both 40-50,000 votes higher. The fact that there were 40,000 more votes and they seemingly all went to the winning candidate is suspicious in itself. This may mean that the actual number of voters might have been less than in 2008. Maybe that is why there were only 40,000 extra votes out of a potential 74,000. If we assume (using the 74,000 figure) that those extra ballots were used to rig the voting, we would also naturally assume that it was successful and the rigged candidate won. Take away those 74,000 unaccounted votes and he's left with only 14,000 votes. A quick look at past results shows that NA-130 is basically Samina Khalid Ghurki territory and she has swept to victory with roughly 40,000 votes every time since at least 2002. With impressive consistency, she again brought in 33,000 in 2013, but this time she was somehow light years behind the winner.

Furthermore, approximately 35% of Form 15 were found to be missing upon inspection of the bags. Form 15 details the number of votes not cast in a constituency. Without this, there is nothing to prevent someone from supplementing a candidate with illegitimate votes. The leftover votes can be taken and simply allocated after noting the absentees (particularly easy if you have a large amount of extra ballots on hand). Form 15 was shown to be missing with alarming frequency in constituencies throughout Pakistan, seemingly without pattern. Perhaps, the lack of a pattern means that it was a mistake after all. Or perhaps, it is because disposing of Form 15 was simply an unplanned opportunistic tactic, only undertaken where the perpetrators were certain they could get away with it (page 183, Point 584).

Also, how is it possible to have 4.12% average votes in excess of the number of registered voters across the whole of Pakistan? How can you have more votes than voters? This indicates the equivalent of 104.12% turnout, yet the election turnout was estimated at 55%. To have 4.12% extra votes just seems unbelievable. This likely is just the poor English of the report, which was clearly not drafted well or proofread.

Coming to the TORs of the JC, the first one asks: “Were the elections organised and in accordance with the law?” In response, the report concludes: “Having considered all these factors the Commission is of the view that notwithstanding the shortcomings of the ECP, the 2013 general elections were in large part organised and conducted fairly and in accordance with the law.”

By the report's own admission, the ECP is to blame for a badly organised and poorly executed election. And it actually doesn't matter whether you think it is the result of rigging or of ECP failure. Either way, the election has been compromised. That should invalidate the first TOR at the very least, which in turn invalidates the third TOR as well. If the election is not fair in how it processes votes, how can the result possibly be correct? The election result is not truly reflective of the wishes of the electorate. No one can judge what the result of the elections would have been had they been held without all the ‘irregularities’ that have been detailed.

On the subject of the second TOR, the JC report states: “The plan or design was not specified by PTI and the allegations remain unsubstantiated by the evidence on record”. Was it the PTI which was presented with all the available evidence? Was it its job to deduce the plan? It now falls to the general public to decide. It should also be noted that the report was first sent to the prime minister and his lawyers. Had the report not been acceptable to the PML-N, it may never have been made public at all. Imran Khan may have accepted the report. I have only accepted the fact that it exists. Imran Khan is certainly persistent but has found more success and progress by protesting on the streets. His mistake has been to repeatedly put faith in a system that constantly works against him.

I urge anyone who takes the future of this country seriously to read the report and assess the evidence. Make your own conclusions. I was always of the opinion that organised rigging took place in the 2013 elections. Exactly how it was done was something that I had hoped the JC would deduce. But this wasn’t even tried. The kind of ‘irregularities’ seen could never have been solely due to the failures of the ECP. Direct interference and malpractice is the only logical conclusion. For decades, this country turned a blind eye to corruption. If we continue to accept this and still do not act, what hope is there for a better Pakistan? 

Published in The Express Tribune, July 31^st,  2015.

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