Rigging probe: Govt asks chief justice to nominate judges

A similar request sent to SC in August was returned with objections

ISLAMABAD:

Now that the Pakistan Tehreek-e-Insaf (PTI) has reclaimed its place in parliament, the ruling party has again written to the top court to nominate three judges for investigating rigging allegations in the May 2013 general elections.

Last month, the ruling Pakistan Muslim League-Nawaz had agreed to form a judicial commission to investigate the PTI’s longstanding rigging claims. On April 3, a presidential decree gave the proposal legal cover, allowing the government to constitute an inquiry commission. Once the PTI’s conditions were met, the party decided to end its parliamentary boycott and also attended the joint session called to discuss the Yemen issue.

On Tuesday, Law Secretary Justice (retd) Muhammad Riaz Khan submitted a letter to the Supreme Court registrar, asking the chief justice to nominate three apex court judges for the commission according to Section 2 of the General Election 2013 Inquiry Commission Ordinance 2015.

The federation had submitted a similar letter on August 13, 2014. The government had asked the SC to form a ‘commission of inquiry’ under the Pakistan Commissions of Inquiry Act, 1956. The top court had raised objections over the government’s request, and the commission was not formed.

However, the government has not mentioned the Term of Reference (ToR) of the commission in its fresh letter.

Lawyer Chaudhry Faisal Hussain told The Express Tribune the ToR need not be mentioned again as the government has asked the top court to form a commission in view of the new ordinance, which defines the scope of inquiry.

Section 3 of this ordinance reads: “The commission shall inquire and determine whether or not: (a) the 2013 general elections were organised and conducted impartially, honestly, fairly, justly and in accordance with laws; (b) the elections were manipulated or influenced pursuant to a systematic effort or by design by anyone; and (c) the results of the elections, on an overall basis, were a true and fair reflection of the mandate given by the electorate.”

Expert opinion

Legal eagles are still divided whether or not the commission can be formed, despite the issuance of a new ordinance. But this time jurists expect the top court to nominate the judges.

Lawyer Hussain believes the top court is bound to nominate judges for the commission under the new law, and it will not be contrary to Article 225 of the Constitution, which reads: “No election to a house or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by act of parliament.”

Supreme Court Bar Association (SCBA) President Fazl-e-Haq Abbasi also says the commission can be constituted under the new law and it will be welcomed.

Former SCBA president Kamran Murtaza contends, however, the commission cannot be formed because an ordinance cannot override an article of the constitution.

Published in The Express Tribune, April 8^th, 2015.