Apr 212008

There were an enormous number of convictions in the views of most neutral observers that the 18th February elections could not be fair. There were two main reasons for this pessimistic conclusion. First as a contest it was inherently lopsided since the incumbent regime was clearly a continuum of the Musharraf establishment. There is conclusive evidence establishing the heavy damage done to the very foundations of decent society by decisions of this interim government under Musharraf who had appointed it. Heading the list of such pieces of evidence is the causal manner of their action and inaction in the brutal assassination of Benazir Bhutto. 
As I have already written a detailed column in this paper of the criminal and administrative liability of the caretaker’s administration for various acts of misfeasance and nonfeasance there is no need for further re-iteration. Their bias in favour of the ruling candidates was emphatic; conversely they had something to gain by the loss of the challengers. Secondly, without a massive rigging of huge proportions, it was not possible for Musharraf to sustain the holding of his unconstitutional power. 
This is all confirmed when on the 18th morning in his interview with the Associated Press, AFP and the BBC, Musharraf’ openly claimed that his King’s Party would win. 
This was so bland a statement full of exhibiting undiluted bias in an emphatic dynamics in favour of the political group that supported him as to cast serious suspicions on his desired neutrality. On that morning while sitting at breakfast with the top leadership of the PML (N) I heard as much; I had, however, ventured to suggest that in my evaluation in Punjab Mian Nawaz Sharif with all known handicaps would win easily and that in Sindh that would be the case for the PPP. 
Now the strongest scientifically examined testimony of this process comes from an institution of the highest level of international scrutiny. There were about two hundred foreign teams of observers to monitor the conduct of these elections. Amongst them was the European Union Election Observer Mission (EUEOM) which published its final Report on the 16th April in Islamabad. This report requires analysis since apart from finding many concrete deficiencies it also had a set of 80 recommending for improving the electoral process for future and 10 important concrete suggestions.
Chief Observer Michael Gahler while addressing media said, “Although the February 2008 elections were competitive and the results were accepted, there are enduring problems with the framework and conditions for elections in Pakistan. If these are not addressed, there is a serious risk of electoral problems in the future. I therefore call on the Pakistani authorities, political parties and civil society to swiftly undertake electoral reform. I will be returning in a year’s time and hope to see some significant advances.”
In his remarks he pointedly stressed the vital importance of an independent judiciary in which there was “stakeholder confidence”. Gahler further added that the Election legislation should be reviewed in a “consultative manner” meaning thereby the political entitles of the country. Specific issues to be addressed included the independence and transparency of the election administration, complaints and appeals procedures, and overly-restrictive candidacy requirements.
But most crucially Gahlar pointedly suggested that the appointment of the Chief Election Commissioner and ECP members should be “subject to stakeholder consultation” so that “independence perception of his neutrality may be manifest.” The ECP should be restructured and it should operate transparently and consultatively to take full responsibility for its mandated tasks.” In a European way this was the most severe critique of the present Chief Election Commissioner and the ECP. 
The European report also contains recommendations for a speedier mannerism of election appeals to courts and tribunals and calls for a disposal in timely manner by judges who were independently appointed. This point of timely disposal of the election matters is empirically known to me. 
Twice in the past when I contested for Senate, I prevailed in my first challenge after three years of intense litigation but when were just a few days left in that tenure; secondly when I was about to prevail, the Election tribunal headed by the current Attorney General who has gained international notoriety because of his advocacy on behalf of Musharraf recently, adjourned the matter for about 50th time which meant that the election litigation was useless as by that time the tenure had ended.
The European report has several notable recommendations for micro level improvements of the election process. In particular it would like (1) all polling station results to be swiftly displayed at the constituency and on the internet, (2) the ECP should produce an accurate and complete electoral roll most expeditiously, (3) if only C/NICs are permissible for registration and/or voting, acquisition of a CNIC should be facilitated so that there was no barrier to participation, (4) and finally that efforts should be made to reduce women’s severe under-representation in the electoral process. The European Report is very significant in respect of its emphasis on the role of the media. A reform of the legal framework regulating media activities should be undertaken which may include reduced restrictions and clear-cut definitions for journalists’ use.
Later, responding to the queries Gahler said that the state run media was used for election campaign of former ruling Party and Nazims were directly involved in elections campaign and widespread misuse of state resources was observed on behalf of candidates of ruling coalition candidates. 
The Report pointed out that there was serious problem with the framework and conditions in which the elections were held and a level playing field was not provided during the campaign; this was particularly visible in the abuse of state resources and bias in the state media in favour of the former ruling Parties. This criticism applies to the PML (Q) and the MQM which could use such influence over the administrative machinery responsible for the conduct of polling.
The report further stated that as a result, the overall process fell short of a number of international standards of genuine democratic elections. The elections took place in a difficult security environment in which the threat of violence and an atmosphere of fear prevailed. It also stated that as a result of attack on political party gatherings, over 100 party supporters were killed during the campaign. 
In addition, over 50 people were reportedly killed in clashes between supporters during this period, report added. It is further pointed out that tragically in December 2007, leader of Pakistan Peoples Party (PPP) Benazir Bhutto was assassinated at a campaign rally, leading to widespread anger, violence and rioting around the country. In this context, the election process, particularly on the day of voting saw courageous commitment to the democratic process by voters, candidates and party workers, elections staff, representatives of media and civil society and state personnel.
It was also said in the report that the election process began while emergency rule was in place and the Constitution was suspended, together with its guarantees of fundamental rights. Several thousand people, including judges and journalists were detained. Emergency rule was lifted only one day before the beginning of the campaign period. According to the report during the period of emergency rule many judges including the Chief Justice were removed following an executive order, damaging public confidence in the independence of judiciary and the rule of law. Judiciary plays significant role in the elections administration as well as election adjudication.
The right to stand as a candidate was also breached by the legal requirement for a bachelor degree, which excluded the overwhelming majority of the population. It maintained that there was lack of confidence among election stakeholders in the independence and efficacy of the Election Commission of Pakistan. Up to 26 million voters out of 81 million registered voters could not vote due to erroneous entries and omission in registration and unavailability of computerized national identity cards. The report stated that the restrictions and pressures placed on media before and during the election period seriously limited freedom of expression and the public’s right to receive information. There were credible reports of police harassment of Opposition Party workers and agents, it said.
So in the face of this condemnation by the EU the success of the current political entities acquires an extraordinary significance. There is no doubt that but for this phenomenon of bias in favour of those of who were supporting Musharraf, there might well have been a more telling result against the previous regime. Accordingly, it is necessary that while evaluating the election results, it may be kept in mind that but for this type of “rigging”, results in favour of the PMNL(N) PPP and the ANP were quite devastatingly one sided.
While examining what lies ahead, this basic foundation of the Popular Will must be kept paramount. There are many important political realizations emanating from this fact. However, two such possible consequences may be particularly noted. These two relate to (a) the fields of domestic constitutional law and the other (b) for regional political activity in which Pakistan has been involved on account of Musharraf failed policies. 
First is the question of how to deal with the effects of the constitutional mess left in the country by Musharraf’s unconstitutional actions of the 3rd November. I feel that there is a major challenge for the cabinet committee to be formed to thrash out the judges’ issue is to decide the status of ‘controversial’ decisions made by the present Supreme Court constituted under the Provisional Constitution Order 2007. The Federal Law Minister has already ordered his ministry officials to stop the distribution of controversial copies of the Constitution, printed by the caretaker government and which includes articles 270-AAA, 270-B and 270-C. All such “changes” have been already taken off the official Website of the Government of Pakistan on Constitution. 
Secondly the hostilities in the Frontier Province of Pakistan require a comment. After getting the approval of the coalition Government the Military leadership has brought about a major shift in their ongoing policy on ‘military operation against the “militants” in Tribal Areas’ and turned to the negotiation table from the battlefield. After the recent successful brokering of the truce in North Waziristan the Military leadership has entered into negotiations with the tribal elders in South Waziristan mainly inhabited by the Mahsud and Wazir tribes. 
It appears that new government’s resolve not to follow the Musharraf tactics are tacitly approved by the US. In the maiden briefing on the role of Pakistan in international war on terror and ongoing military operation in Tribal Areas, given to the political leadership recently in Prime Minister House, Army Chief Gen Ashfaq Parvez Kayani had sought the support and suggestions from the political leadership to handle this issue turning into a chronic problem. 
Now after the detailed deliberations on the subject and after taking American leadership into confidence, the political leadership has given a agreed with the Military leadership to go for dialogue with the men in mountains and look for the other options to bring peace to these troubled areas. In North Waziristan a peace accord had already been made with the militants and Tribal elders were engaged in the negotiations to broker a permanent solution to the problem while in South Waziristan too the negotiations were afoot to reach a similar truce to pave the way for the broad-based negotiations to get permanent solution to the problem.
Thus it is clear that for the first time in Pakistan’s history the elections have not only attracted decisive foreign attention, their eliciting of the Popular Will has come to leave an indelible mark on the current history of this region.
The writer is a Barrister at Law, Attorney at Law (US) Senior Advocate Supreme Court of Pakistan and Professor, Harvard University

Source: The Nation, 21/4/2008


 Posted by at 8:19 am

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