How Judicial Commissions SHOULD work!

I am writing this piece because I think there is something drastically wrong with my nation’s sense of justice. I’m talking in particular reference to the Judicial Commission that has been formulated to investigate various aspects of alleged “Electoral Rigging” in the Pakistani elections 2013 for the national and provincial assemblies. I believe that either almost all of the media anchors and analysts, politicians, law understanding critics and a majority of the general public have forgotten what “Justice” looks like, or maybe I am from another planet where justice means something else entirely!

If I am to believe my perception of what all these aforementioned sections of our society are saying, and harping on in the media, then that perception looks something like this: Pakistan Tehreek-e-Insaf (PTI) is the accuser upon whom rests the burden of evidence for proving all the allegations that they have laid on the election process. The state has got no interest in the matter by itself, rather it is a dispute between two political parties, that has to be settled only because one of those parties is in power and therefore in a position to request the Supreme Court for formulation of an inquiry commission. And whomsoever PTI has accused for the alleged rigging, be it PML(N), ex-Chief Justice of Pakistan Iftikhar Chaudhry, election commission itself, ROs etc……are the defendants or respondents. To summarize, it is pretty much something similar to a plaintiff vs defendant dispute.

This is the common perception of the masses. Now I’m not big on common perceptions, and know that perception might be different from reality, but what can I do when almost all of the media critics and intellectuals alike have apparently submitted to this perception. And to add to my disbelief, PTI…the main drivers behind this campaign, also seem convinced for most part that this is the way the cookie crumbles; this is the way judicial commission is supposed to operate, and therefore usually cut a sorry figure whenever a media person enquires from them that why haven’t they submitted tenable evidence in the commission to support their claim this far.

I want to believe that the honorable judges that are comprising the commission must not be running this inquiry with this perceived modus operandi, but just in case they are, I’m going to delineate why this is not the way the inquiry ought to be conducted and why, if done so, would amount to utter injustice. What I wish to ramble in ensuing paras, in my opinion, is pretty self-explanatory; but hey, if my perceptions are so different from the society’s, then maybe I ought to make my ramblings more palatable for the readers. Hence, let me give an example, which I can use as an analogy to syllable-out the inherent logic in the points I draw later.

Let’s imagine you were a diligent student and were appearing in some board examination. May it be Matriculation, or may be FA/FSc etc. Once the result came out, you discovered that you were failing or barely passing in Mathematics. Now you knew for sure, something went wrong at the grading end. You went to your teachers and reached out to other students. You found that this happened with many students from your school, in Mathematics. You wanted to approach the authorities for remedying your grievance, but decided to do a little digging at your own end before that. When you dug, you unraveled an alarming pattern. All the rich kids, who weren’t that good in the subject, scored heftily, while the poor ones didn’t. After carefully collating all data, you formed a pretty strong hunch that the paper codes allotted against names were changed in a manner that marks obtained by you were wrongly allotted to some other rich student, while his poor grading was being reflected in your mark sheet. On further discovery, it came to the fore, that this practice occurred throughout the city.

Let’s say you were living in USA. You knew that the existing law could not help you as it will only re-check the marks against the allocated code, and therefore would not be sufficient to remedy or to prove a systematic conspiracy. You went to the powers that be with your grievance and analysis. What do you think happened? They made a general enquiry into the academic standing of the students and the general perception of some credible teachers. Having done that, like any other justice seeking people, the authorities straightaway formulated an inquiry commission designated to investigate this discrepancy at the city level; because they recognized that if there’s any truth to this conspiracy it will cause considerable harm to the future of the students allegedly wronged.

The only thing asked from the students as evidence was to show that they had all the reason to believe that they were wronged; because the commission knew that it would be unreasonable to ask them for evidence of the alleged wrongdoing, since by design, the students “cannot” possess any actual evidence of the wrongdoing or the conspiracy they were alleging. Instead, the inquiry commission took it upon themselves to uncover the truth, and asked the examination board to turn over the papers, code sheets etc. They discovered the discrepancy in code sheets and found out through painstaking comparison of handwriting which paper actually belonged to whom. Unfortunately, many of the questions/answers along with the inscribed codes were no longer readable due to bad procedures adopted for their storage. Since the commission had established pilferage, but could not definitively ascertain the correct codes, it gave two verdicts. One, mathematics exam should be re-conducted in the entire city. Second, another commission be formulated to find out the people responsible for the debacle and malice or conspiracy, if any. Because, while the second verdict was also very important for the nation, it was nowhere near as significant for the rights of the students which needed remedying straightaway!

Anything seem “not right” in this entire imagined scenario? I think any person, with even only a basic sense of justice, will endorse the reaction of the authorities, their interest in relieving the students’ grievance, and the operating procedure of the commission! Could they or should they have gone in any other direction? Of course not. It’s a no-brainer!

Now this is what happened in Pakistan in the same case……well a little more serious case :)!

Not only some students, but students from every school of the city alleged that they had been wronged. Moreover, a few notable officers in the examination board themselves came forward confessing that there had been some grievous irregularities. Notwithstanding, the authorities initially were not even ready to react. They shrugged off the entire issue as un-important. Students from one school, however, decided to campaign for what they called “their right” to force the authorities to deliver justice. Then once the authorities finally conceded, nevertheless claiming colossal kindness and indebting the students wronged….. the commission, ironically, called upon the “students” to submit evidence: not to show that they had reason to believe that they were wronged; but instead evidence that proved, beyond reasonable doubt, that the board of examination had misappropriated, including evidence about who all were responsible for that, any conspiracy that had occurred, and who all were the accomplices and abettors, with legally tenable evidence of their involvement.

Not only the commission, but the city-wide media, anchors, analysts, headmasters, politicians and lawyers agreed that the burden of evidence lies on the students of that one school who converted the demand of all students and schools into a campaign. And that the commission will sit with a thumb up their ass, cross examining any evidence that the students would, and could, bring up. And the students….oh the students….even they started believing that they had to “produce” evidence of irregularities they neither had the authority or access to possess. Gosh, only if there was someone who could tell those idiots that they were bound to submit squat! It was the job of the inquiry commission; not theirs’!

Does the entire media, the politicians and all the king’s men want me to believe this is justice? They want me to believe this is how inquiry commissions work? And that PTI has to prove their allegations? And that this isn’t a case pertaining to national interest? Or that it is only a dispute between two parties? I humbly request the fair-minded intellectuals of my society to educate me, please. Because if this is what justice looks like, I think I’m not human! Did the Iraq commission inquiring the WMD fiasco in UK operate like this? Or so many other commissions in the developed world???

Sense of justice is a shared collective sense. It cannot be different with you and different with me. Sure, nitty gritties of justice in a particular case might not be fully comprehensible for you and me equally. But the basics are always known, agreed and clear as the light of day.

Any political party cannot, simply cannot, possess any legally tenable evidence of any rigging or irregularity, let alone about the conspiracy of systematic rigging. Ain’t this a fact? Even if they do, why should the verdict of the commission be driven by the health of this kind of secondary evidence? The actual primary evidence is unequivocally in the electoral bags; the form 14s; RO certificates; thumb impression verifications; election commission records….just like the code sheets and examination papers in the analogy above. All the three articles of the TORs can be and must be ascertained solely by examining these records.

It is preposterous! How and why should any entity other than the record bearers be burdened or even asked to submit evidence for an incident that took place behind closed doors….away from the jurisdiction of the public? When the entire case can be solved by simply looking at the records, why is there a need for he said she said testimonies? Well I’m not going to let my dumb Pakistani comrades get away with this trickery, or maybe idiocy. I won’t let them pin the burden of evidence on one party, or hitch the entire commission’s findings to an “impossible” evidence of conspiracy! Impossible, for the general public to establish. If the entire state’s resources at the disposal of USA’s state institutions couldn’t link El Capone with a streak of assassinations, connecting the conspirators’ with a rigging conspiracy in Pakistan….fool’s paradise!

Don’t get me wrong! PTI or any individuals who sullied the name of any public or private entities must be tried under the defamation act. There’s no question about it. And I think, all such defamed entities have actually taken the slanderers to court. The law should take, and is taking, its course in those trials. But this judicial commission, must not take it upon itself to factor-in any such slanders that were not made part of the TORs. The TORs do not name any particular accused. The commission has to find, as much the wrongdoers on their own, as much the wrongdoing itself. Their task is to simply examine the validity of the election mandate. If they find it was rigged, or even beset by significant irregularities, they have to go for re-election. Conspiracy or no conspiracy, is a different ball game, which we all know, is more often that not, lost by the accusers.

I strongly believe that the honorable judges in the commission must be doing their due diligence, despite the angle media, politicians and my nation as a whole has taken on this matter. But if they’re not, or if I’m wrong in expecting justice to look like this, I humbly beseech any and all readers to guide me as to where did I go wrong!

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