Campaign finance and Asghar Khan case
Holidays are over. The low energy and muted voices of Ramadan have been restored to past glory. The spiritual zest – genuine and fake – has subsided. The shaitaan has been unchained, once again. And in the coming week, as the stakeholders return from the festivities of Eid, the business of statecraft will commence with all its fervor. And to kick-off the proceedings in style, the prime minister is due to appear before the honorable Supreme Court on Monday, in what could be the road to disqualification of yet another government.
In the circumstances, with elections looming at the horizon, it can be safely suggested that national debate, institutional focus and electioneering rhetoric, will be focused on developments in the NRO implementation case, and imminent proceedings in prime minister’s contempt of court. The sensationalism (and dramatic consequences) of these cases has almost made it impossible to focus on other (lesser?) issues of national importance. However, such obsession with one issue, to the exclusion of all others, is a mistake. It is a classic example of the urgent crowding-out the important. The sensational crowding-out the systemic.
One such example (of extreme importance) requiring urgent national, political and judicial focus, is the Asghar Khan case – and most importantly, the issues pertaining to the influx of (illegal) money in the electoral process, along with its tinkering by our omnipotent spy agencies.
Brief facts, for those less familiar with the case: Former Air Marshall Asghar Khan approached the honorable Supreme Court with allegations that, leading up the 1990 elections, the army and the ISI had bribed (and forced) certain politicians into creating the IJI as a counterforce to Benazir Bhutto’s PPP. The case, despite involving issues that strike at the heart of our democratic process, was not taken up by the Supreme Court for over a decade, until a few months ago. As it turns out, in the proceedings General (retd) Asad Durrani (the then DG ISI) and others have presented sworn affidavits admitting their unlawful conduct of distributing bribe money among politicians. But despite its startling importance and (for the most part) undisputed facts, the case has not proceeded at any considerable pace, and no verdict is expected anytime soon.
In an election year (the importance of which cannot be stressed enough), this case has presented the court with a clear and unrestrained opportunity to give a declarative judgment on the requisite 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 is enshrined in Article 17(3) of the Constitution, 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. This statute further mandates that the leader of each party 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.
For individual candidates, the issue is governed by the Representation of People’s Act, 1976, which, through section 12, requires that each 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”. Once elected, each member must 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 proceeded against 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 political parties have a clean and transparent financial record coming into the election, and b) ensuring that money is not amassed illegally by during their term in office.
Surprisingly, however, we have not developed any meaningful jurisprudence on campaign finance issues. It is as though campaign finance is just an academic idea in our democratic process, tucked-away from reach of judicial oversight. Reason? Since members from all sides of the political divide are guilty of violating campaign finance laws, no one seems interested in highlighting the issue. Consequently, our political process has been reduced to a simple notion of who can spend the most (legal or illegal) money during elections, with an incentive to recover it during the term in office.
This transformation of the electoral process into a capital-intensive exercise has effectively eradicated 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 sadly, as a result of not enforcing the law that already exists on our statute books, we have systematically ostracized a large portion of our population from ever affording to aspire for political office.
This, for all intents and purposes, is an election year. And all actions – by political parties, the judiciary, the media and civil administration – are being taken with one eye on the polls. In this frenzy, the judicial focus (rightly or wrongly) has been tuned to the sensationalism of NRO and prime minister’s contempt cases. These cases, while supremely important in their own right, are short-term in their application; their effect is (for the most part) limited to this particular government and the select beneficiaries of the NRO. It is perhaps time to zoom out a little and realize (as well as capitalize upon) the opportunities of fixing the democratic process for the longer haul. If the Supreme Court employs the same degree of urgency and persistence in the Ashgar Khan case, as it has in the NRO case, we might be a step closer to addressing a larger malady that infects our democratic paradigm.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu