THE promise of democracy is plain: the people decide, through their representatives, the rules that govern the society they live in. Undergirding this promise are two basic principles.
One, it is the people who choose the representatives, who, in turn, advocate for the people’s interests in the assemblies. Two, the elected representatives are to pursue the interests of the people who elected them, resisting the lure of self-dealing. On both these fronts, weak democracies, such as Pakistan, fare poorly. Only a candidate that finds favour with the majority in a constituency must serve as their agent in the assembly. In Third World countries, such as Pakistan, along with pre-poll rigging, such as distortion of census results and gerrymandering of constituencies, poll results are often skewed in a far more blatant manner.
There may be resort to violence, including firing in and around polling stations on election day, to harass and intimidate voters, at times resulting in deaths; capturing of an entire polling station by a political party’s supporters; intimidation and removal of the other party’s political agents from the polling stations, and, as we recently learned in the Daska bypolls, polling agents may go missing the night of the election, without having turned over the results to the Returning Officer, and remaining untraceable to the ECP and the district administration for hours. Other deficiencies also abound; extreme poverty and embedded hierarchies, for instance, allow for the purchase of people’s votes, and undue coercion of voters by a local hegemon.
Once a representative is elected, there have to be built-in checks to ensure the representatives do not engage in self-dealing. In Pakistan, the representatives’ self-dealing ranges from siphoning off development funds, to ensuring the provision of Covid-19 vaccine, out of turn, to one’s entire family, when, in the first round only senior citizens are eligible to receive it. A lurid example of unchecked — though not deemed illegal — self-dealing was when representatives sought to pass a bill in February 2020, exponentially increasing their salaries and perks, while the people suffered from a shrinking economy, unemployment, inflation, and crippling tax hikes.
Courts must have limited tolerance for irregularities in polls.
The possibility of representatives gaming the system to enter the assemblies, coupled with the fact that the representatives, once elected, may engage in self-dealing with impunity, often laying inroads for long-term entrenchment, increases the stakes; there has to be a gatekeeping function for candidates as they metamorphosise into elected officials. This function has been granted to the ECP under Article 218 of the Constitution. The ECP under Article 218, and Section 9 of the Elections Act 2017, may call for re-election of an entire constituency in situations where there are grave illegalities, or violations of the law, that, in turn, affect the result of an election. The appeal from the ECP’s decision lies to the Supreme Court.
Second, under Sections 139 and 142 of the Act, a candidate may file an election petition before the election tribunal, within 45 days of the publication of the election result. The tribunal has the power under Section 154, among others, to declare the election in the entire constituency void. An appeal from the election tribunal’s decision again lies to the Supreme Court.
Third, under Article 199(1)(b)(ii) of the Constitution, a writ of quo warranto may be issued by the high court against an elected public office holder on invocation of constitutional jurisdiction by any person, including a voter in the constituency. The superior courts have the power to remove the elected official from office, if, for instance, it comes to light that the official misrepresented information in his/her nomination papers. Similar powers, in the nature of writ of quo warranto, are exercised by the Supreme Court under Article 184(3).
As a result, the superior courts in Pakistan take centre stage when it comes to safeguarding electoral processes. The courts’ role, meanwhile, has to be clinical. The superior courts must be reluctant to develop tolerance for misrepresentations and forgeries in the candidate’s nomination papers since individuals already susceptible to deceiving may attain a public office, that, in turn, allows for unchecked opportunities of self-enrichment. Also, the courts must have limited tolerance for irregularities in the conduct of elections, since otherwise they may end up rewarding candidates who have developed the means to hoodwink the entire system.
An activist judiciary, in its overzealous exercise of power can do immense damage, but so can a judiciary that lets perjuries of a candidate and major irregularities in an election slide by. In fact, only when the electoral process is vigilantly guarded, can it be ensured that the promise of democracy stays alive.
The writer is a litigator based in Islamabad.
Published in Dawn, April 11th, 2021