#PMLN & #PTI Talks on Judicial Commission and Special Investigation Team


#PMLN & #PTI Talks on Judicial Commission and Special Investigation Team

#PMLN & #PTI Talks on Judicial Commission and Special Investigation Team

1. Agreement was reached that establishment of the Judicial Commission (JC) under a specially enacted statute in the form of an Ordinance (rather than the Pakistan Commission of Enquiry Act, 1956) is the way forward.

2. PML-N agreed to promulgation of the Ordinance, subject to prior consultation with other political parties in Parliament for which the PTI and PML-N agreed that PML-N would have a period of seven (7) days and that the Ordinance would be promulgated seven (7) days from the date on which the accord is signed between PTI and PML-N. It was further agreed that the Ordinance would be finalised after consultation with the PTI.

3. Agreement was reached that the JC must comprise of a panel of three (3) Judges of the Supreme Court with the Judges to be nominated by the Chief Justice of Pakistan. It was also agreed that PML-N and PTI would be pleased if the Honourable Chief Justice decides to head the JC personally.

4. It was agreed that to fully empower the JC it would have all the powers of a civil and criminal court under the Civil Procedure Code, 1908 and the Code of Criminal Procedure, 1898 respectively.

5. There was also broad agreement on the ‘procedure’ to be adopted by the JC. However, the precise language could not be agreed to. The position of PTI was that: the JC shall follow such procedure, including summary procedure, as it deems fit in the interest of justice so as to enable the JC to complete its enquiry and give its report as expeditiously as possible and in any event within forty-five (45) days of its first meeting.

6. The PML-N agreed ‘in principle’ to the constitution of a ‘Special Investigation Team’ (SIT) comprising of senior officers of federal and other investigative agencies and instrumentalities (including, without limitation, the FIA, NADRA, ISI, MI, IB) under the control of the JC which shall operate as the ‘investigative arm’ of the JC. It was also agreed that the JC shall determine the scope of work of the SIT.

7. PML-N agreed to the proposal regarding the balanced composition of the SIT and that the head of the SIT be appointed after consultation with PTI.

8. PML-N and PTI agreed that the JC shall perform its functions in a just, fair and transparent manner.

9. PML-N agreed that, simultaneously with the establishment of the SIT, non-controversial, non-partisan professionals shall be appointed as heads of NADRA, FIA and Secretary ECP shall also be replaced after consultation with PTI after fulfilling requirements of ‘due process’.

10. Agreement was broadly reached that the JC shall give its report as expeditiously as possible and preferably within forty-five (45) days of first meeting. However, agreement on the precise language could not be reached. The differences related to whether the provision in the Ordinance should emphasise whether the JC must give its report ‘in any event no later than’ forty-five days as proposed by PTI or as PML-N suggested only ‘preferably within forty-five days’.

11. Agreement was also reached that if any dispute or disagreement arises in relation to implementation of the accord (setting out the agreed terms between PTI and PML-N and signed by their respective Chairmen) that it would be referred to a Dispute Resolution Committee (DRC) comprising of three (3) representative each from PML-N and PTI.

12. PML-N agreed that the consequences of a final report from the JC containing an affirmative determination of the TOR shall be: (a) dissolution of the National Assembly in terms of Article 58(1) and (b) appointment of a Caretaker Cabinet in accordance with the Constitution in consultation with all concerned including the PTI.

13. It was also accepted by PML-N that the terms of agreement reached with PTI (including the above points) would be incorporated into the Ordinance.

14. An impasse persisted on the following matters at the last meeting held on 8-9-2014:

(i) The specific “Terms of Reference” for the JC (or in other words the “test” or “definition” of “rigging and manipulation”) could not be agreed between PTI and PML-N with each side proposing its own language.

(ii) There was also disagreement on whether the JC may reach its determination by examining a sample of a reasonable number of constituencies of the National Assembly, being not less than forty (40), having regard to the time period prescribed for completion of its investigation

(iii) There was disagreement on whether the ‘Terms of Reference’ for the JC should include an illustrative list of ‘factors’ to be considered by the JC as part of its investigation.

(iv) There was also difference on opinion on the PTI proposal that the JC make its determination “on the basis of reasonable evidence and the totality of the factors, occurrences, and events brought before it”. Conversely, the PML-N insisted that the threshold of evidence be “proof beyond reasonable doubt”.

Terms of Reference of the Judicial Commission (Section 3.1.9)

[Alternate proposed by PTI on 11-9-2014]

1. The JC shall inquire into and determine whether the 2013 General Elections (2013 GE) were organized and conducted honestly, justly, fairly and in accordance with law or whether there is evidence of widespread illegalities, rigging or manipulation in the organization or conduct thereof.

2. In undertaking its inquiry, the JC shall examine a sample of a reasonable number of constituencies of the National Assembly (having regard to the time period prescribed for completion of its inquiry) which shall not be less than forty (40) and consider all relevant evidence, factors and events, including but not limited to, the following:

(i) any material coming to its knowledge from any source or information laid before it which, in the opinion of the JC, would have a material affect on the transparency, legality, validity or fairness of the 2013 GE.

(ii) violations of the Representation of the People Act, 1976 (1976 Act) or the Representation of the People (Conduct of Election) Rules, 1977 (1977 Rules) or other applicable laws or judicial pronouncements relating to the organization or conduct of elections or any failure or omission of officials to perform their functions in accordance with law, propriety, fairness or morality.

(iii) absence, in material quantity, of any election or polling record, form or instrument required to be prepared and maintained under the 1976 Act or 1977 Rules;

(iv) thumb print analysis report of the National Database and Registration Authority.

(v) illegal or improper administrative or official acts or omissions during organization or conduct of the 2013 GE.

3. The JC shall make its determination on the basis of reasonable evidence and the totality of the factors, occurrences, and events brought before it.

4. PTI being one of the complainants shall submit a proposed list of constituencies to be included in the sample to the JC for its consideration; provided that the JC shall select the constituencies for its inquiry in its discretion as it deems fit in the interest of justice.

Procedure and time frame for JC (Sections 3.1.3 and 3.1.8)

[Alternate proposed by PTI on 11-9-2014]

Subject to the Constitution, in exercise of its powers and functions under this Ordinance, the JC shall follow such procedure, including summary procedure, as it deems fit in the interest of justice so as to enable the JC to complete its inquiry and give its determination as expeditiously as possible and, preferably, within forty-five (45) days of its first meeting.

The report containing the determination of the JC shall be a public document.

[Additional provisions in the Ordinance to address matters
raised during meeting of 10-9-2014]

The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being force, including, without limitation, the Representation of the People Act, 1976 (Act No. LXXXV of 1976) and the Representation of the People (Conduct of Election) Rules, 1977:

Provided that, the conduct of the inquiry by the JC under this Ordinance shall not affect any pending election petition or appeal arising therefrom which shall continue and be decided in accordance with the applicable law.

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