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An unrealistic law

July 10, 2012

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EGYPT’S newly elected president, Mohamed Morsi, is of a humble background. His is an inspiring story — a diligent middle-class person struggling his way up the class ladder.

It is a common belief that when in government such persons, as opposed to the wealthy, are more sympathetic to the woes of ordinary folk and thus prove better rulers. But electoral democracy allows the ultra rich to spend their way to legislatures while the ordinary man, unable to afford extravagant election campaigns, has to stay out.

This is a long-standing complaint in Pakistan. The election authorities have over the past many decades tried to address this shortcoming, real or perceived, through measures to curtail expenses that the candidates incur. The experience has been a failure.

Section 48 to 51 of the Representation of the People Act 1976 sets a limit on election expenses and binds the candidates to report the latter to the returning officer within 30 days of notification of the winning candidates’ name.

The first elections under this law in 1977 ended up in martial law and the issue did not arise. For the second non-party poll in 1985, Gen Zia waived the requirement through an ordinance promulgated after the elections.

In the next two elections (1988 and 1990), the president, on the recommendations of the elected governments, kept extending the last date for the submission of election expense returns and then amended the law allowing the government itself to notify the time limit. The extended time limits in both cases exceeded the life of the elected assemblies.

Poll administrators realised, after four general elections, that the idea of curtailing election expenses through this law was absurd and the reporting exercise futile.

There are many vital questions that the law had failed to address. First is the debate about what constitutes election expenses. It may seem simple in matters like campaign posters or banners but becomes tricky in other indirect expenses. For example, if a candidate supports a free dispensary in his/her constituency, would it be accounted as an election expense?

Then there is the question of timing — should expenses made during a specific time period be considered election expenses, say, starting from the date of filing nomination papers? This will lead candidates to start their campaigns much before accounting starts.

A lot of expenses of many candidates are picked up by their supporters and sponsors. Should these be counted as expenses incurred by the candidates themselves or should there be separate arrangements for dealing with supporters/sponsors?

The law requires the candidate to report all expenses to the returning officer who ironically has no means of verifying whether the candidate has reported all expenses and reported them correctly.

For example, if the candidate claims that he got 5,000 copies of a poster printed and hired 50 vans to transport his voters to polling stations, can the officer go back in time to see that the candidate had in fact ordered 500,000 posters and booked 500 vans?

If the candidate does not report at all the per diem he had paid to his 100 polling agents, how can any authority find out? Mind you, any evidence of violations has to qualify as legally acceptable proof otherwise it will be of no use.

If a candidate exceeds the expense limit, it is a corrupt practice under Section 78 of the Representation of the People Act and failure to submit a report is illegal under Section 83.

Under the law, the returning officer (head of the election machinery of a constituency) shall report these violations to the Election Commission which in return will direct the officer to file a case against the candidate in court. Protracted court proceedings could last longer than the tenure of the accused elected member. This makes the whole exercise a farce.

Parliament realising the futility of the law omitted Section 48 to 51 from the Representation of the People Act 1976 through an amendment in 1991. However, when the first Nawaz Sharif government collapsed, the interim set-up found it opportune to disrespect the act of parliament and reinserted the clauses in the statutes through an ordinance.

The acting president also amended the law so that it became difficult for the winning candidate. Unsuccessful candidates were now required to submit their expense report within 30 days of the notification of the winners’ names while the elected members were asked to submit the report within 10 days of polls.

Further amendment in Section 42 bound the Election Commission to withhold the notification of the winner’s name if he/she failed to submit the expenses report within the prescribed time limit. The administrators of elections thus were able to extract expense reports from winning candidates while letting the rest off hook. The innovation, however, did not help counter the irrationality of the whole exercise.

These changes affected through a presidential ordinance dissipated as their constitutional life expired and parliament did not enact them into law again. The sections, however, were inserted again in 1997 and then in 2002 through presidential ordinances. When parliament provided legal cover to Gen Musharraf’s ordinances through the 17th Amendment to the constitution, Sections 48 to 51 were permanently restored.

Parliament had understood the legal folly and corrected it in 1991 but the establishment, on its high moral pedestal, refused to let it go.

Four decades and several general elections later, one does not need to prove that the law is useless, but fears of being portrayed as a supporter of the ultra-rich and as obstructing the way of the common man to parliament prevent people from saying so.

Paradoxically, a closer look reveals that the middle class has not been completely obliterated from the elected Houses. Despite a very erratic history, many have reached the hallowed premises — and for reasons different from the expenses part of the election campaign.

All of them, in fact, have one thing in common: their parties possess a strong network of political workers. The law on the issue of election expenses sidesteps the real issue and whenever internecine fighting among the state institutions flares up, it helps some score a few moral points against the elected members.

The writer works with Punjab Lok Sujag, a research and advocacy group with a primary interest in understanding governance and democracy.

tahir.mehdi@lokpunjab.org