Guardians of democracy

For us to graduate to a clean democracy, concerns of popular opinion and media chatter will have to be sacrificed at the altar of constitutionalism

The changing of our national guard, with handing over of governmental reigns to the interim setup, reminds me of the ancient Olympics. The trumpet has been sounded and participants have assembled. Swearing in of the interim prime minister is synonymous to the haughty announcements of “let the games begin”. And this week, as the party tickets are announced and nomination papers get filed, the entire nation will embrace the election fever, in the hope that the next cycle of democracy shall be a step towards deliverance from the past mistakes.

Amidst all this, the true and final political power rests with those who cast the ballot. However, for the next two months, how that political power gets exercised, and in whose favour, has been entrusted to the ‘guardians of democracy’.

Who, you might ask, are these guardians? Well, keeping aside the undercurrents of khaki conspiracy and power of the establishment and intelligence agencies, from a constitutional perspective, the guardians of democracy are 1) the interim government, 2) the Election Commission of Pakistan (ECP), and 3) the judiciary. And unless this tripod adopts a concerted and unified approach towards guarding the reigns of our future, we may once again be faced with painful prospects of incompetent governance.

The first leg of this tripod is the interim government. In cricket analogy, the interim government, in a match between different political parties, is the grounds staff – they prepare the pitch, run the roller, and make sure the outfield is smooth and lush green for a fair contest. In accordance with Chapter 2 of Part VIII of the Constitution, upon the dissolution of the assemblies, the interim government assumes the responsibilities of statecraft, with the primary objective of conducting free and fair elections. In this regard, the administrative responsibilities of governance and conduction of the elections rests with the interim rulers – including the control of civil bureaucracy, preventing violence and crime through the control of police, ensuring the availability of requisite transportation and administrative facilities for the voters to cast their ballot, and demonstration of neutrality in terms of accommodating the demands from all sides of the partisan divide. While the interim government cannot influence who gets to contest the elections, or even determine questions of moral and technical eligibility, they can certainly influence the casting of ballots through denying facilities or extending favours to particular candidates and constituencies.

The second, and most important, leg of this tripod is the Election Commission of Pakistan. Sticking with the cricket analogy, the Election Commission is the umpire – it keeps the score, counts the number of balls per over, calls wides and no-balls, indicates the fours and sixes, looks out for ball-tampering, and is the decision-maker in terms of when a batsman gets out. In the constitutional scheme, Article 218 constitutes the Election Commission, and Article 218(3) entrusts it with the duty “to organise and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against”. And for this purpose, the constitution mandates that “all executive authorities” shall assist the ECP in discharge of their duties (Article 219 of the Constitution). In this regard, the powers of the ECP are vast and far-reaching. In fact, the influence of the ECP starts much prior to the election itself, with “preparing electoral rolls” and “appointing Election Tribunals” (Article 218(4)), and continues for some time thereafter to resolve election disputes (per Article 225).

The third and final leg of the tripod is the judiciary. While not directly involved in the electoral process, the judiciary sits as the final arbiter of all issues, including those concerning the elections. For a cricketing nation, the judiciary is the third-umpire. All parties can refer a matter to the judiciary, in accordance with the laid down legal procedure, for a closer look, and an overturning of the decision of the ECP. Judiciary, as a custodian of the constitution, can overturn electoral results and disqualify candidates even after they have passed the test of the ballot and scrutiny of the ECP. And in this regard, the judicial responsibility, specifically in terms of qualifications and disqualifications of the candidates, has the potential of shaping the outcome of the electoral process.

In this constitutional scheme, it is important for the guardians of our democracy to keep a keen eye on few competing interests. First: a degree of deference must be afforded to the ability and choice of people to elect a candidate of their own choosing. And the urge to be unkind, in terms of scrutiny and disqualification, towards a candidate who is disliked or out-of-favor with our guardians of democracy must be checked. Second: on the other hand, in an election cycle, while the tempers and public passion is at a fever pitch, the urge to simply play to the gallery in order to allow or disqualify candidature must be resisted. In this regard, it would be pertinent to be mindful of the fact that everyone, no matter how disliked in public opinion, is innocent till proven guilty. And exactly for this reason, do Article 62 and 63 of the Constitution (along with the established principles of jurisprudence) require a ‘conviction’ in most cases, before a candidate can be disqualified from contesting or holding an elected office. And finally, our guardians must balance this requirement of a formal conviction, against admitted and public guilt, in order to undertake some weeding out of bad apples, when the record is amply clear and unquestionable.

A prime example of this is the case of Waheedza Shah who, for slapping the Assistant Presiding Officer (on camera), in the by-elections of 25th February, 2012, had been disqualified by the ECP, for a period of two years. This ban was upheld by the honourable Sindh High Court but, just two days back, a three-member bench of the honourable Supreme Court has lifted this ban, allowing her to contest in the upcoming polls. This decision, made for reasons best known to the court, sends a distasteful signal. When the action of a contestant is so belligerent, has been caught on camera, and later adjudicated upon by the ECP and the Sindh High Court, it is disappointing to see the honourable apex court, with a detailed order, overturning the same on the eve of the elections. The message, regardless of the technicalities, is one that undermines the authority of presiding officers, as well as that of the ECP. And this despite the fact that a presiding officer, during the course of the election, is playing an administrative as well as an adjudicatory role (as a judge). One wonders if the court would have ruled the same if the Mrs Shah had meted out the same treatment to a judicial officer, rather than a presiding officer.

These are tough times. And the position of our guardians of democracy, in a country as troublesome as Pakistan, is not enviable. There is bound to be criticism of their conduct. Whoever stands to lose might even indulge in mud-slinging at these esteemed institutions. But for us to graduate to a clean democracy, concerns of popular opinion and media chatter will have to be sacrificed at the altar of constitutionalism.

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]