Fixing the democratic process

Elections and black money – an unholy alliance

The intoxicating allure of ‘democracy’ stems from its fundamental promise that all citizens, on equal footing, have the right to participate in the governance of their affairs. And this promise is manifested through the process of free and fair elections – where anyone can contest, and all are counted as equals. But the influx of money (read: black-money) in political campaigns has robbed democracy of this fundamental promise, bestowing the privilege of being elected to the select few who can afford it. And despite legal safeguards built into our election laws, the flow of (often illegal) money dominates the outcome of the electoral process.

The Asghar Khan case has lain bare the unholy alliance between political campaigns and suspect sources of money, which rots the very fabric of our democracy. And the Supreme Court has an opportunity to hand down a declarative judgment that settles the parameters of election finance, in accordance with the law.

With all the talk that surrounds convicting the generals for their thoroughly illegal exercise of funding the creation of IJI, it is easy to miss out on the still larger goal of getting our house in order regarding the implementation of campaign finance provisions in our election laws. One part of that is holding accountable those who (allegedly) accepted the illegal money, violated numerous provisions of the law – section 78 (Corrupt practice), 79 (Bribery) and 83 (Illegal practice) of the Representation of People Act, 1976 – and in effect perpetrated a fraud on the entire democratic process.

But such prosecution (even convictions) will not solve the larger issue of ensuring that there is transparency in how the political parties and individual candidates a) raise money for their political activities, and b) use the available capital in the election process. In both these areas, it is not the law (on statute books) that is inadequate; it is simply the implementation and enforcement of the law that is missing.

For political parties, the idea of accountability for the sources of funding emanates from the Constitution itself – Article 17(3) – which mandates that “every political party shall account for the source of its funds”, as prescribed by law. Furthermore, under the Political Parties Order, 2002 each political party is required to submit an annual statement of assets and liabilities, income and expenses, as well as sources of its funds to the Election Commission. The statute further stipulates that party leader must certify that no party funds have been received from “prohibited” sources (section 13). And the rules made under this law allow for prohibited funds to be confiscated by the Election Commission.

In the case of individual candidates, the issue is governed by the Representation of People’s Act, 1976, which mandates (in section 12) that every candidate, at the time of submission of the nomination papers, must provide a statement of “assets and liabilities”, along with those of his/her spouse and dependents, which are open for anyone to “inspect”. Thereafter, all elected members are required to file a yearly statement of assets and liabilities with the Election Commission (section 42A). And where any such declaration is “false in material particulars”, the candidate can be prosecuted for “corrupt practice” (section 82).

The intent behind these laws, of keeping black-money out of politics, is two-pronged: a) ensuring that our elected representatives and their political parties have a clean and transparent financial record coming into the election, and b) ensuring that money was not amassed illegally during their term in office.

Surprisingly, however, combing through our jurisprudential history reveals that virtually no litigation of note has ever been brought to the courts on issues of campaign finance. The reason for this is not because all parties and candidates have only ever used legitimate sources of funding, but that since members from all sides of the political divide are guilty of violating campaign finance laws, no one seems interested in raising the issue. And as a result, our political process has been reduced to a simple equation of who can spend the most money running for elections, and can then recover it during the term in office to contest once again.

By transforming the election process into a capital-intensive exercise, we have given up on the ideal of allowing ‘anyone’ an opportunity to contest – captured in section 49 (Restrictions on election expenses) of the Representation of People’s Act, 1976. And this is a sad reality, because it systematically ostracizes a very large portion of our population from ever aspiring for political office. And we have reached this point for no other reason, but a lack of enforcement of law that already exists on our statute books.

If is freedom the glory of God, and democracy its birthright, then the provisions of our election laws must be enforced in letter and spirit to allow a larger fraction of our population to have the opportunity of participating in this birthright. Only in this way, can we widen the circle of opportunity in our country, and deepen the meaning of our freedom.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]