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The logic of controversy

February 17, 2013


SOMETIMES, you can spot a damp firework a mile off.

Hang on to your seats, Qadri is going to the Supreme Court, the election commission could be in trouble and extreme turbulence may lie ahead, some warned fancifully. Really?

Article 213(2) of the constitution, post-18th and -20th Amendments, reads:

“The Commissioner [or a member] shall not be removed from office except in the manner prescribed in Article 209 for the removal from office of a judge….”

Spot the bucket of ice-cold water on Qadri’s dreams there?

An ECP member is given exactly the same protection of office under the constitution that a judge of the Supreme Court is.

If the Supreme Court itself were to tinker with the ECP’s cast-iron protection, someone else may get the idea that it’s OK to interfere with the judges’ security of tenure.

The danger would be apparent to even an extravagantly activist court.

So Qadri’s petition was dead on arrival, though it still had to be dispensed with theatrically.

But why the obsession with the election commission in the first place?

ECP this, ECP that, down with the ECP, throw out the ECP — Qadri has hammered away at the election commission since his reincarnation as political gadfly.

Qadri’s assault has been all the more remarkable because until he came along the ECP was regarded near universally as more independent and more relevant than ever.

But more independent and more relevant does not necessarily mean more powerful.

For Qadri and his ilk, a paper tiger isn’t good enough to get the job they want done done, i.e. banishing from politics at least the worst of the worst — to clean up the system some and serve as a warning to the rest.

To be less effective come election time — or altogether ineffective, in the minds of the Qadriites — all the ECP members would have to do is follow the letter of the law. Because the letter of the law, as it stands, doesn’t really allow the election commission to do much.

To go beyond the letter of the law — and perhaps in search of the true spirit of democracy that the anti-democrats are always so keen on — you’d need to replace the five election commissioners with crusaders.

Say, of the kind we’ve seen in the Supreme Court in recent years. Crusaders are result-orientated folks, not too concerned with the minutiae of the law.

And it’s precisely in the minutiae that the powers of the election commission come unstuck, hobbling the ECP’s role as a transformative agent of democracy, the gatekeepers who will deliver a cleaner and better democracy — at least along the lines Qadri and the anti-democrats are hoping for.

To understand why the ECP can’t really keep out the bad eggs under the existing laws and rules, look to the amendments the election commission itself has proposed to toughen its bark and bite.

Say you want to knock out the bad eggs at the nomination stage. Candidates file their papers, then what?

At present, election officials have just seven days to vet the nomination papers and few powers to requisition official records to corroborate what the candidates claim in writing about their financial and legal position.

Give even the most ferocious and committed of election commissions just seven days to scrutinise an avalanche of nomination papers — as the law does at the moment — and only the most superficial scrutiny will be possible.

And even if you have all the time in the world to scrutinise nomination papers for falsehoods and misleading statements, it would amount to little if you don’t have the power to summon documents and information to verify what the candidates’ claim about their financial and legal standing.

Relying on good faith and cooperation of other institutions is just not good enough: when the stakes are this high, you can bet your last rupee that what isn’t absolutely required to be provided under the law will not be provided.

Turn to the most common electoral malpractices: corruption and bribery, as set out in details 78 and 79 in the Representation of the People Act, 1976, the controlling legislation. As the law stands, the most common manipulations of the voting process do not attract more than a slap on the wrist — no fine worth its mention and no threat of jail.

Small fines, no threat of jail time: when the incentive to cheat is as great as a potential electoral victory, the deterrent has to be substantial, else it is meaningless.

Return to Qadri and the anti-democrats.

Knowing the inadequacies of the electoral laws, the insufficiencies of the election commission and the unwillingness of the politicians to fix a system they thrive on, the ECP has become a logical pressure point for Qadri and the anti-democrats.

Best-case scenario: the ECP members resign under pressure, or are chucked out somehow, and are replaced with a crusading bunch.

That crusading bunch could then use the bully pulpit of the ECP to lobby parliament for significant new powers, while in the meantime using ends-justify-the-means logic to purge the political class of its worst offenders.

Worst-case scenario: the composition of the ECP doesn’t change but the members are so bullied and battered and their reputations so impugned that they react by tightening the application of the existing laws — and so knock out some undesirable politicians anyway.

Either way, Qadri and the anti-democrats walk away with their pound of flesh.

The writer is a member of staff. Twitter: @cyalm