Daily Times

After the July 25 elections, the major political parties of Pakistan rejected the results of elections and alleged that the elections were rigged across the country. Only Pakistan Tahreek-e-Insaf (PTI)  termed elections free and fair. Moreover, this is not the first time though, in established democracies such as the United States, and even developing democracies like India, where the losers almost immediately concede defeat, every general election in Pakistan has been alleged to be rigged by those who did not make it to the assemblies.

The development of the law is not a product of vacuum, as Karl Marx put it down; the law cannot be read in isolation, it is developed only through its interactions with other ideological structures of society that consist of religion, politics, philosophy and most importantly the economy. While the law of tort has seen development in the Western countries to the point where serving hot coffee negligently can cause lawsuits for millions, it would be absurd and illogical to advise somebody to claim damages even if that coffee was thrown deliberately in Pakistan. The law of tort has been underdeveloped since centuries in the historically colonial parts of the world.Yet not all areas of the law have been underdeveloped, whether commended or condemned, Pakistani jurisprudence has been enriched with development of laws.

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However, electoral fraud is prosecuted around the world ; as in the case of Bill Stinson, who was barred from sitting in the Pennsylvania State Senate by a court after rigging allegations were proved, a judicial inquiry of an entire national election has been unheard of in the world, but Pakistan has grabbed that accolade. After the PML-N won the 2013 general elections, all other losing parties cried foul, and after years of political agitation a judicial commission was formed that was headed by the serving Chief Justice of Pakistan (who was the caretaker Prime Minister for the 2018 elections) and two other Supreme Court justices to submit a report on whether the elections were rigged by a manifest design.

The formation of the Judicial Commission in itself shaped the law, with a political entrenchment of the doctrine that an election could only be said to be rigged if there was a systematic rigging; which was put in as a term of reference. What this means is that an election could not be held invalid if a hundred Bill Stinson’s were convicted, rather its validity could only be called into question if all of them had colluded in a systematic way. The commission itself made it clear that its role was not to look at individual constituencies or election disputes between candidates; rather its job was to take a holistic view of whether a systematic design was present that would affect the overall result of the election. Of course this would always be hard to prove.

Meanwhile, in layman terms the burden of proof means that is to prove a matter, and the standard means how much evidence needs to be brought forward for it to be proved. The law as it stands now has set the burden on the accuser, even though it is hard to fathom on how a political entity devoid of investigative resources of the state could prove such rigging, but this was unconditionally and absolutely supported by the PML-N at that time.

What would make it even harder is the standard of proof that was set by the commission. It noted that if the report stated that systematic rigging took place, there would be intense practical consequences including the dissolution of assemblies.

However, the commission did not reach the conclusion that the elections were transparent, in fact in its conclusions,  it placed the sole blame of irregularities in the election on the Election Commission of Pakistan, which was constitutionally and legally responsible for conducting elections and it  came to the conclusion that there was lack of planning by the ECP for the elections, lack of training and overburdening of returning and presiding officers, failure to comply with electoral laws, a lack of coordination between the Chief Election Commissioner, the Provincial Election Commissioners and the ground realities. Despite this, the commission came down to a conclusion, one that glorified practicality and undercut the importance of complying with electoral laws.

The law was clearly laid down; irregularities would not nullify an election. If any alleges for rigging in election, it will be bound t to bring forward cogent proof of it. The decision could be criticized on many fronts, but it is necessary for the Pakistani polity to develop as a democratic state to let go of the indentations of the democratic process and just move forward.

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Thus, the next parliament should bring significant changes in electoral laws so that the free, fair, and transparent elections be ensured in times to come.