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Tuesday March 19, 2024

The day of the voter...Legal eye

Notwithstanding the pre-poll violence, criticism of the Election Commission of Pakistan, the caretak

By Babar Sattar
May 11, 2013
Notwithstanding the pre-poll violence, criticism of the Election Commission of Pakistan, the caretakers and the courts for failing people in their expectations regarding electoral scrutiny, and the ‘the-more-things-change-the-more-they-stay-the-same’ brand of cynicism, let us relish this moment of democracy when the average citizen is king. Today we choose who exercises state authority on our behalf for the next five years. Not exercising such right of choice also means choosing something. Just like public office-holders are to blame for crimes of commission and omission, we are to blame for the poor health of our democracy if we are so indifferent or hopeless about our state of existence that we can’t even bother to get out there and vote.
The ECP has issued certificates of being sadiq and ameen to all kinds of crooks, we are told by some. The courts are letting all sorts of loan defaulters and terrorists run for office, others lament. The caretakers have failed to provide security to the candidates and citizens, many argue. These concerns are valid but misdirected as the blame is rooted in a misunderstanding of the right balance between legal and political accountability, on the one hand, and sustainable solutions to these problems, on the other. Many provisions of Article 62 are simply unenforceable through the judicial process and ought to be erased from the constitution. It is not for the courts or the ECP to issue certificates of morality.
The electoral scrutiny process can’t be expected to cleanse the society of swindlers within a one-month period when our justice system isn’t delivering as a whole. This scrutiny process is only meant to oust those from the political process who have already been found guilty after due process. Likewise members of proscribed organisations are contesting elections because our law doesn’t state that they can’t. The federal government can include any organisation in the list of proscribed organisations, but that of itself doesn’t transform its members into terrorists (who have never been tried or convicted). To make the concept of a proscribed organisation meaningful we need to fix the Anti-Terrorism Act through legislation instead of looking to the courts to become vigilantes.
The caretakers haven’t failed to provide security to candidates and citizens because they are ill-intentioned or inept, but because our state apparatus has long lost its ability to guarantee the life, liberty and property of citizens. We haven’t seen an increase in pre-poll violence because centre-right parties have failed to condemn violence during the electioneering process. Agreed, justifying indiscriminate killing of citizens by armed militias on any basis – US invasion of Afghanistan; misguided religious views; poverty; bad governance; revenge; drones; secular values etc – that takes blame away from the perpetrators is atrocious. But condemnation of violence, while necessary as a matter of principle, is no anti-terror policy.
The largely nonexistent writ of the state, the inability of state institutions and security agencies to deliver even the most basic of services such as security, and the failure of our criminal justice system to deter or punish criminals and terrorists are not problems that can be fixed in short-circuit mode by the caretakers or the ECP in the run-up to the elections. Terrorism and the capacity of the state to deliver citizen services is the existential crisis confronting Pakistan. And this is what makes this election so crucial. The team that we elect today will determine whether the rot will be stemmed or whether we will slide further into the abyss. Sitting on the fence today is, therefore, nothing short of suicidal.
Imran Khan is the rock star of Elections 2013 and his contributions to democracy are innumerable. He has stirred up the imagination and emotion of a large non-political segment of our citizenry that found politics dirty and the democratic process regressive and pro-status quo. It takes a true leader to inspire hope amidst widespread hopelessness and mobilise hitherto untapped human resource into action. Obama’s ‘yes we can’ electrified the Democratic Party during his first election campaign, and Khan has done something similar for much of Punjab and Khyber Pakhtunkhwa. Committing a talented but disaffected middle class to the democratic process as the mechanism for change is of immense value.
Equally importantly, he has raised the bar and is forcing not just the mainstream parties, but also the traditional politician to reform his habits. Replacing the politics of patronage to that of service delivery based on policies is an absolute necessity but will take longer than a single election. The system of personal patronage has its roots in multiple political, institutional and social values. Our elected representative believes himself to be responsible only for his voters and not the entire electorate. Our public office-holder doesn’t perceive public authority as a trust or state resources as an asset that ought to be preserved. And our society doesn’t collectively believe that merit must trump loyalty.
Changing our decadent political, institutional and social habits and values will be a painful process and won’t happen overnight. And while we celebrate the accomplishment of Imran Khan in emerging as a mainstream political force and for dragging a cynical educated middle class out of its slumber, let us be realistic about what Pakistan will look like on May 12. The conflict between politics of patronage and personal loyalties and that of principles and policies will not be resolved today. If the country gives the Imran Khan-led PTI sufficient support to emerge as a strong voice in parliament, it will be a giant step forward in that incremental process of change that needs to be fostered further.
While the PTI is the wild card in this election, it is unlikely to win a clear mandate in the centre and at least three provinces. Without such mandate, it would be best to sit in the opposition and function as a check on the exercise of executive and legislative authority by the ruling parties. This isn’t the first time in the last few decades that the charisma of a leader has electrified large parts of the populace. Remember BB’s return in 1988? Wouldn’t the PPP have been better off had it elected to sit in the opposition back then to consolidate its gains and return to the electorate for a clear mandate? Further, with zero presence in the Senate it would not be possible for the PTI to give full effect to its policy programme, which will require legislation, till 2015.
Today’s election is likely to produce a split mandate. The timing of such a split couldn’t be worse for Pakistan. The challenge of terror and economic meltdown confronting us won’t wait for a party to be granted clear mandate. Parties across the political spectrum will need to evolve a national consensus on how to urgently address these twin issues. This will challenge the wisdom, maturity and foresight of all political leaders and require them to put the country’s interest before party interests. For the health and perseverance of our polity and democracy, political parties must also accept the legitimacy of electoral outcomes, no matter how disappointing they may be.
Those of us enthused by the concept of change focused on replacing loyalty and patronage with merit and principle must appreciate that this concept doesn’t reconcile with the idea of unconditional support to a party and all choices of its leaders. Surrendering the right to critique a leader or the wisdom of his/her decisions leads to mental servitude which must have no place in a progressive polity. It is the slavish allegiance to party leaders in the name of loyalty that has reduced existing mainstream parties into regressive personal fiefdoms.
Let us get out there and vote responsibly. Let us celebrate or mourn the victory or defeat of candidates we support with poise. And then let us come together on May 13 to confront the monumental challenges facing Pakistan, regardless of whether our party of choice is forming government or sitting in the opposition.
Email: sattar@post.harvard.edu