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Thursday March 28, 2024

Individuals vs institutions

Legal eyeImran Khan’s reaction to allegations of rigging in the Khyber Pakhtunkhwa local bodies elections highlights both his appeal and weaknesses. The statement that the PTI is ready and willing to participate in fresh local bodies elections if other political parties so wish and the Election Commission so mandates is

By Babar Sattar
June 06, 2015
Legal eye
Imran Khan’s reaction to allegations of rigging in the Khyber Pakhtunkhwa local bodies elections highlights both his appeal and weaknesses. The statement that the PTI is ready and willing to participate in fresh local bodies elections if other political parties so wish and the Election Commission so mandates is of moral significance: Khan has taken the position that power rooted in rigged and controversial polls has no attraction for the PTI; that ends don’t justify means and legitimacy of an office is as important as the power that it affords.
Our power elite seems reconciled with the fact that acquiring and monopolising power is the paramount object of existence. And if to realize it one needs to play dirty, so be it. But notwithstanding the PTI’s misconceived policies (eg regarding terrorism) or mistaken means to achieving ends (eg dharna to force electoral reforms), it retains appeal for disgruntled Pakistanis because many of them don’t find Khan fitting the description of a conventional politico comfortable with rotten entrenched practices.
Rigging in Election 2013 might not have been the consequence of a grand conspiracy. But rigging there was. And if Khan had not become a rabble-rouser would we have stopped to think that massive electoral rigging shouldn’t be an acceptable reality? Where Khan has faltered is in proposing solutions to problems. When he was organising his party for Election 2013 many advised him not to make the PTI a sponge for tried, tested and tainted politicos from other parties.
Khan’s response was that with him sitting atop and practising his integrity those below him would automatically fall in order. If Khan’s theory were right, Ali Ameen Gandapur, PTI minister in KP, would not be caught with stuffed ballot boxes. Khan blamed Nawaz Sharif for rigging in the 2013 elections because Sharif won. He wanted Sharif’s head even though holding elections was the Election Commission’s responsibility.
Call it poetic justice, but with the anti-rigging chorus across KP, led by the PTI’s coalition partner, Khan’s party doesn’t look pretty judging by standards set by Khan himself: the PTI is in power in KP even if the ECP conducted elections; its minister was caught cheating; in delaying Gandapur’s arrest (and arresting Mian Iftikhar Hussain on trumped up charges), KP police – the poster-child of Naya Pakistan – defeated claims of being a non-partisan agency; the PTI won and all other parties allege organised rigging.
The PTI getting a dose of its own medicine is of no serious consequence. What is of consequence is that Khan’s response to allegations of rigging was a re-election under army supervision. That is what exposes the PTI’s prime weakness: even after a two-year obsessive focus on rigging, its proposed solution to endemic problems is nothing other than adhocism. Here is a party, quick to identify problems and seemingly more earnest than its competitors in addressing them. But in terms of solutions, it is out of ideas.
In 2013 Khan had suggested that elections be held under judicial supervision to ensure their credibility. How did that work out for the judiciary? It is not the army or judiciary’s job to supervise elections. It is the ECP’s job. The army is credible because it thinks like an institution, acts like one, invests in its institutional capacity and can be non-partisan (if it chooses to). Let’s not find adhoc replacements for the ECP. Let’s ensure that the ECP has the capacity, autonomy and resources to its job right.
Administering national, provincial and local bodies elections in a country of 190 million with a propensity for violence and an ends-justify-means ethic that condones (if not encourages) cheating is not easy. And fixing the ECP is not about finding five good commissioners. We’ll have to move our focus beyond individuals. So long as the ECP resembles a fly-by-night enterprise relying on untrained bureaucrats or schoolteachers to get the job done, we will keep experiencing a repetition of 2013 across Pakistan or 2015 in KP.
Even if we get the elections right, will politicos allow local bodies the political, administrative and financial autonomy to be meaningful institutions of self-governance? Let us remind ourselves that dictators repeatedly brought in local bodies structures (for their own vested interests of course) not politicos championing democracy. Even after introducing a legally enforceable right to local government through the 18th Amendment (Article 140-A), our mainstream parties have kept the third tier of government dysfunctional.
While Balochistan convened local bodies election, local bodies wouldn’t come to life in Punjab, Sindh and KP were it not for our Supreme Court. The courts have literally had to force elected governments to introduce grassroots democracy as promised by our constitution. Even then the PML-N led Punjab, through legislation, has tried to take life out of local bodies by suggesting elections on a non-party basis and circumventing local bodies’ jurisdiction by granting overriding powers to the baboo-run LDA.
Here too the Lahore High Court has had to intervene to uphold the right of citizens to local self-governance under Article 140A read with Article 32. Lahore High Court’s full-court judgement authored by Justice Mansoor Ali Shah in Imrana Tiwana vs Punjab declaring Shahbaz Sharif’s signal-free corridor project unconstitutional provides a peek into challenges confronting our yet-to-be born local governments and our politicos’ resolve (even if inadvertent) not to let them be meaningful institutions.
Justice Shah’s judgement gives reason for optimism to those who lament that we don’t make judges of the quality we used to back in the day. The one judgement of contemporary times that must be read by politicos, students of law and ordinary citizens is this: http://sys.lhc.gov.pk/appjudgments/2015LHC2551.pdf. The court quotes E O Wilson to remind us that, “if there is any moral precept shared by people of all beliefs it is that we owe ourselves and future generations a beautiful, rich and healthful environment.”
While declaring the decision-making process culminating in the signal-free corridor project illegal, the court politely exposes how the Environmental Protection Agency, essentially comprising one Grade-20 DG, is in a state of capture and acting as the master’s alter ego. Equally consequential is the court’s effort to trace the history (and logic) of local bodies, how the concept fits within the federal scheme and reminding us of the sagacity of the subsidiarity principle – ie in a democracy decisions must be devolved to the lowest practical level.
While Shahbaz Sharif engages the best legal minds to poke holes in the judgement before the apex court to win back his signal-free corridor, could he please pause to think that the court is saying what all proponents of democracy say: it doesn’t matter whether there is more development under dictatorships or less because people aren’t involved in decision-making. When you task Grade-20 officers to implement a project to be funded by taxpayers that you have dreamed up overnight, ordinary people remain as disempowered as they would be under a dictator.
In holding elections or in issues of governance generally, the key point both the Sharifs and Imran Khan are missing is that they in their self-perception as messiahs will not be able to fill-in for functional institutions. The motorways and the metros will not solve our problems. Building institutions will, which in turn will also deliver us our motorways and metros.
There is a legal maxim (rex non potest peccare) that ‘the king can do no wrong’, which underlies the principle of sovereign immunity. But men sitting atop our power pyramid are stung by the belief that they can literally do no wrong. Anyone telling them otherwise is an enemy or conspirator. Once you believe you are the sage who knows all, there is no need for devolution of power, no need for checks and balances and no need for the principle of subsidiarity. May nature cure our sages and introduce in them some self-doubt – for their sake and ours.
The writer is a lawyer based in Islamabad.
Email: sattar@post.harvard.edu