Analysing the Judicial Commission report

Published: July 31, 2015


PHOTO: AFP The writer is pursuing BSc in Economics and Political Science at the University of Southampton. 
He is son of Reham Khan

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 31st,  2015.

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Reader Comments (29)

  • Asim
    Jul 31, 2015 - 1:58AM

    You son of a Reham Khan ! Enough said.Recommend

  • Tahir
    Jul 31, 2015 - 5:17AM

    Why is this in the op-ed section and not blogs? Because he is Reham’s son? The Express Tribune newspaper is promoting family politics here not PTI. Recommend

  • Amir
    Jul 31, 2015 - 5:24AM

    You sound more intelligent and articulate than your mother. Recommend

  • Shakil
    Jul 31, 2015 - 8:17AM

    It seems atleast someone has sense in PTI. Very well written article. This should be have been done by Shireen Mazari or Naeem Ul Haq. Alas.Recommend

  • Idress Khan
    Jul 31, 2015 - 8:23AM

    @Tahir: Grow up please, as if you are not someone’s son ?. Everyone is somebody’s son. Instead of the positive side of the article and approciating a young boy for speaking up we are discouraging him becuase he is Reham Khan’s son ? How lame an argument is this. Well Done Sahir Khan, you Rock!. Recommend

  • Manzoor ahmad
    Jul 31, 2015 - 9:13AM

    Very nice …atleast some one who can explain realities ..for me there is no hope for better pakistan now in the presenese of these morons …these mafias are very strong…in last very well written keep itup mashAllah
    God blessRecommend

  • excalibur
    Jul 31, 2015 - 9:57AM

    @ Tahir

    Who is stopping Hamza . Mariam, Bilawal etc from writing ??????????? Even their fathers are incapable of either holding any extempore Press Conferences or write anything other than their names or thmb impressions to gather loot.

    NS meets Obama with written notes in hand and leans on his sidekicks to reply to any question in a meetingRecommend

  • zafar iqbal ranjha
    Jul 31, 2015 - 9:59AM

    The young is more intelligent and convincing than most of sons and daughters of our politicians. He must be encouraged for his well analyzed and articulated conclusions. He has found in the reports which most of our lawyers belonging to even PTI failed to find out. Imran Khan can pay more heed to such brilliant sons and daughters of this proud nation. I am so amazed and surprised at his brilliant approach in studying, in an analytical way, this long report of the Judicial Commission. One fails to understand why the honorable judges have not taken into account while giving their one sided verdict in the favor of the sitting government. The judges were expected,at least,to give their recommendations to send references against four members of ECP to supreme judicial council SJC for their impeachment. There members will never resign,under any circumstances, and are bent upon to conduct another general election in similar fashion for the similar for beneficiary and against the similar aggrieved parties. That,s why the government is not interested in the removal of these old men from their slots. Why they haven,t followed the example of Fakhru Bhai? For he is more honorable man and it is far difficult to follow the path dictated by such noble but weak souls.
    Zafar Ranjha Mandi bahauddin. Recommend

  • Jawad khan
    Jul 31, 2015 - 10:37AM

    Good might be the freelance advisor to IK.Recommend

  • Jul 31, 2015 - 10:54AM

    Unfortunate to hear that the ECP will not resign despite the fact that there are serious discrepancies found in JC report. Infact in our country no one can be resign due to incompetency. Recommend

  • OK
    Jul 31, 2015 - 10:55AM

    “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”

    How does a badly organized and poorly executed election invalidate the TOR’s? and what’s the third TOR?

    On another note, thumbs up for the perspective you offer – we should all read the report. Recommend

  • yasmin
    Jul 31, 2015 - 10:58AM

    Judiciary is total failure department; doing nothing all r unwilling workersRecommend

  • Ali
    Jul 31, 2015 - 11:05AM

    Form 15 “Perhaps, the lack of a pattern means that it was a mistake after all” When more Form-15 were absent from seats where PTI won, you give it a benefit of doubt. But when it comes to seats won by PMLN you are sure it was all rigging. Double standards lad. You are not fooling anybody.Recommend

  • Taurus
    Jul 31, 2015 - 11:15AM

    who gave you all these statistics Sahir? Recommend

  • Hamza Salman
    Jul 31, 2015 - 12:02PM

    Very well-laid out. What I like most is the objectivity shown in dissecting the evidence and the findings. Recommend

  • Usman
    Jul 31, 2015 - 1:04PM

    Fantastic analysis.Recommend

  • Parvez
    Jul 31, 2015 - 1:25PM

    I wonder what the reaction would have been like if you had given your name as Maryiam Sharif ?
    The report simply says there was much wrong but the result was right……I think that’s called an oxymoron.Recommend

  • excalibur
    Jul 31, 2015 - 2:36PM

    @ Parvez

    Mariam’s lawyer has yet to explain with documentary evidence to the LHC as to how on Earth could she have claimed to do a PhD in a subject different from her claimed Masters degree

    It has to be in thr Guinness Book of Records like her Uncles many records e.g Deshelling Almonds by cracking them with the head. at the Punjab Youth Festival faudRecommend

  • Arshad Kamal Khan
    Jul 31, 2015 - 3:44PM

    Good analysis.
    All the vital actions needed for holding an election are totally flawed.
    The people saw, took videos,immediately informed the general public of rigging going on, clear pictures of people casting illegal votes, all that was disregarded by the JC as being of no real relevance.
    The crime and stealing of the funds for the useless ink, to be used has not been addressed properly.
    Now the nation, which pins hope after hope, on the political leaders and Courts of Law , for a better Pakistan, get what they have been getting for the last 60 years- a crap.
    People pined for this report with excitement and dreamed of a better Pakistan, have once again been cheated.
    The report is incomplete, and the judges have been face saving themselves with the help of tunnel vision to confine themselves rigidly within the terms of reference. The TOR was used in a biased manner to save the guilty, corrupt leaders.
    The judges have thrown the burden of proof on PTI when they know that the PML-N has been in power since three decades, has doled out favors to all people who matter, and do indulge in unlawful acts. They left the lambs at the mercy of the lions. It is clear that the judges not only sit in that gleaming building with a marble facade but inside they seem not to hear the voices of the people who have been crying for justice. It would be worthwhile for them to read Dostoevsky’s “Crime and Punishment” for redemption. May Allah save our souls from people who are so ignorant and have so colored vision of their own country.Recommend

  • Reality Check
    Jul 31, 2015 - 4:21PM

    please refrain from commenting on the JC decision unless you have read the whole paper. JCs decision reflects the evidence that was presented to it by the accusers chief among them PTIRecommend

  • annoyed
    Jul 31, 2015 - 4:41PM

    Judicial commission report is as right as the degree your mum claims to hold. As a British, who exactly are you anyway to meddle into our internal affairs? Prove your locus standii first. Are you a stake holder in PTI politics just because you sneaked into the “empire” a few months ago? We were dying in rain outdoors, when your mum was exchanging vows with the Khan. PMLN is strongest now because of inept legal team your current dad came up with. Is that the best he could do? I fret the day he actually gets the premiership of Pakistan.Recommend

  • FSK
    Jul 31, 2015 - 9:00PM

    @ Asim, does that waive away all the facts narrated??? Can we lift our thoughts beyond personalities and try to be more rational??? Thats the easiest of response you have given, would have been lot better if you reply would have been against the facts.Recommend

  • nk
    Jul 31, 2015 - 11:15PM

    And another contender enters to try to present the same worn out facts in a different package.

    the fact is that PTI and its cronies/followers cant accept defeat and are not behaving like spoilt sports. Ironic really coming from a party led by a sportsman.

    Let us not obfuscate facts and imran khans failure as a leader. How can he and his followers still claim that the JC was flawed. The JC took into consideration the evidence that was produced. You know what the best evidence is in a court of law? a silver bullet that can seal the deal once and for all. You know what the silver bullet was in this case? the alleged 35 punctures proof. How is it that that evidence was not produced. That was allegedly such strong evidence that it could have ended the case once and for all. You lied about that evidence, in which case your “belief” that the election was rigged is nothing but heresy. or you failed to intentionally produce the evidence (clearly an impossible assumption but lets suspend belief for a second) in which case again its your incompetence. Please don’t insult the courts for your lies and incompetence.

    Now lets address the major claims the author makes:

    “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.”

    What exactly is fair according to you? Have you ever heard of the concept of materiality? there will always be a margin of error that has to be accounted for when it comes to an event of this scale. Look to one of the most advanced democracies in the world, America, and tell me you think there aren’t irregularities there. thumb impression machines stop working. polling booths don’t open on time. many many small irregularities happen. But for the most part people accept that none of these things make a material difference.

    What the JC is saying is that sure there were irregularities, just none that materially altered the wishes of the electorate.

    This also applies to this statement “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. ”

    You can split hairs all your want to defend imran’s misguided actions, but the fact remains that the only unbiased institution in the country, the courts, and its agents, have declared the elections fair. You can go back on your word and not accept the decision. You can moan and complain. But the fact remains you cannot claim that somehow your interpretation as a biased observer is better than that of the honourable judges.

    What is important is the spirit of the law, not just the letter of the law. always remember that next time you pretend to be a lawyer online. Recommend

  • Shandana
    Aug 1, 2015 - 8:41AM

    Very well written ! Good job and keep writing. Recommend

  • Arsalan
    Aug 1, 2015 - 10:48AM

    Some people need to understand that JC was not a court rather an inquiry/investigative which had been granted powers to probe into election discrepancies and alleged rigging using SITs instead of solely relying on the evidence presented by the concerned parties.

    It’s like police asking the family of the victim to present evidence for the identification of the murderer than investigating the murder itself.

    The Judicial Commission has failed to do its duty to the nation by simply judging the case on the evidence presented before it. Its decision was an insult to the intelligence of this nation which witnessed the instances of rigging with its own eyes and those shown on the TV screens during the elections.

    Thank God, it was only a commission and not a court whose decision is not a legal binding on the parties, otherwise, it would have set a negative precedent for the cases of similar nature.

    Moreover, instead of analyzing the case on arguments presented in this piece, people have resorted to attacking the writer because of his mother. What a shame! Recommend

  • NK
    Aug 1, 2015 - 2:30PM

    to all the people claiming JC did not do its job because it only evaluated the evidence presented and did not investigate, how do you think courts work?? THIS is how they work. The judges don’t gather information. If two parties have a grievance, their respective lawyers gather evidence and then analyze and present it.

    Secondly, before criticizing JC for not gathering data, how about asking your great leader why he didn’t present the 35 punctures proof. That was a magic bullet that could have 100% proved your case. Instead you’re blaming JC for not gathering data. Be logical for just one moment. Tough for PTi followers but try: IK and PTI convince you that elections were rigged because of 35 punctures proof. In court PTI and IK don’t present proof of that. WOuld you now go and blame the JC for not gathering data, or would you 1)reanalyze the information you were provided, i.e. maybe IK lied, elections were not rigged, and there is no proof, or 2) that there IS proof but IK didn’t present it. In either case, your anger should be directed towards IK and PTI and not JC.Recommend

  • Aamir
    Aug 1, 2015 - 10:38PM

    Whosoever the writer is immaterial – important point is “what is being said”. All the people who are commenting negatively are requested to READ THE REPORT and then comment. If you objectively read you will see the anomalies & contradiction in report your self. If you have not read the report and you are just criticsing it because of the identity of writer then this is biased thinking. I did not caste vote to PTI but as far as I am concerned I dont care if its written by even IK himself, just prove him wrong with reason and facts not words. If still you want to play game then you are obviously proving yourself to be N-leaguer.. Recommend

  • Zara
    Aug 2, 2015 - 7:05AM

    Since when Sahir Rehman known as ‘Sahir Khan’? Who leaves his father’s name to adopt his step father’s sur name? Even the ‘Khan’ Reham uses in her name is not her father’s name or from her lianage. What is wrong with this family? Remember Mrs. Reham is so very famous for having short cuts in her life.Recommend

  • ishratalim
    Aug 2, 2015 - 5:08PM

    With what It is observed, it seem that most negative comments are coming from people who have not read the JC report, hence the obsession. Had they read the JC report objectively & with more openness, there would be more mellowness in the comments they have aired.Recommend

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