The challenge for ECP

J K Rowling has a point when she argues that, “If you are holding out for universal popularity, I’m afraid you will be in this cabin for a very long time.” This is good advice for leaders generally. There are certain public offices particularly unsuited for popularity contests. Positions that come with security of tenure, and where office-holders can only be removed for misconduct, fall broadly within this category. For example, judges ought not to seek popularity. The desire itself can affect the judges’ duty to dispense justice in accordance with the law. Like judges, election commissioners also must not vie for popularity, for in doing so they will falter being effective gatekeepers.
The Election Commission cannot assume a paternalistic role and start deciding for people what is good or bad for them. But it also cannot become an indifferent bystander performing no scrutiny of candidates on the basis that it is for people to decide whether the contestants are worthy or not. There are maximalists who believe the ECP should engage in the former practice and separate the wheat from the chaff prior to elections, lest people choose chaff for themselves again and democracy in Pakistan becomes even more revengeful. Those pushing the ECP to exercise ‘parental control’ because ‘people might not know wherein their true good lies’ are wrong. We don’t need ‘controlled democracy’.
And then there are the minimalists who argue that in a democracy it is for the people to choose who will lead them, and if they end up choosing liars and thieves as their representatives, so be it. They are also wrong. It is true that an election is probably the most important component of a democracy. But it isn’t the only one. The other equally important component is rule of law. And thus legal and political accountability cannot be viewed as competing models of accountability or substitutes. It is the lack of appreciation of the complementary nature of legal and political accountability that makes the minimalists and maximalists both wrong.
Article 218(3) vests broad powers in the ECP and creates an affirmative obligation to ensure that, “elections are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.” The ECP is not a subsidiary of the judiciary or the executive, but an independent constitutional institution. Just the way an independent and assertive judiciary is essential to uphold rule of law in a constitutional democracy, an independent and assertive ECP is imperative to establish a functional representative system of governance. Leading social and political change is certainly not the ECP’s job, but undertaking legal enforcement and reform and enabling people to make informed choices is.
“There is no short cut in evolution”, Justice Louis Brandeis had argued. With the emphasis on level-playing field, maximum disclosure of candidates’ information, focus on facilities reducing the role of money on election day, seeking bans on advertisements, recruitments and use of funds that amounts to pre-election rigging, we have come a long way from when our understanding and expectation of fair elections was limited to preventing stuffing or stealing of ballot boxes or overnight change of winning candidate’s name. While we must keep pushing the ECP to raise the standard of electoral transparency and fairness, we must also realise that change will be incremental.
As we inch toward Elections 2013, the ECP will be unable to meet the expectations of all stakeholders. The gripe of parties, candidates, voters or civil society with individual decisions that the ECP makes is less consequential. What will have a lasting impact on the health of our democracy and our polity is the manner in which the ECP conceptualises its constitutional role and the broad principles it upholds in discharging this role. The positive legacy of Chief Justice Iftikhar Chaudhry will not be his suo motu(s) but that under his leadership the separation and independence of the judiciary from the executive – always provided under the constitution – became entrenched as a matter of practice.
The chief justice, as head of the judiciary, now sits on the head table of the state and this will not change even after the present incumbent walks into the sunset. T N Seshan, the 10th election commissioner of India, is not remembered as an icon due to the wisdom of individual decisions he made while supervising elections or because he magically ousted criminality from the electioneering process for all times to come. He is celebrated because he successfully pushed for consequential election reforms and redefined the status and visibility of India’s Election Commission.
The challenge for Fakhruddin G Ebrahim is not the number of fake-degree holders he catches. The gauge of his success will be whether under his leadership the ECP manages to entrench itself as an independent constitutional institution that actively supervises and controls the election process, as opposed to being a pushover issuing missives to all and sundry but functionally hostage to the ruling elite and special interests. In order to do so the ECP will need to form a clear view of the values and principles that must be pursued uniformly and rigorously in discharge of its duties and in making individual decisions, no matter who the casualty.
The public office-holder, in offering to represent the people and their interests, is seeking for himself a fiduciary role. A higher standard of probity and integrity attaches to all trustees. In choosing to opt for such a position of trust and responsibility, the prospective public office-holder cannot hide behind the notion of privacy that protects ordinary citizens. The educational qualification, tax record, lifestyle choice etc of ordinary citizens is a private matter so long as it doesn’t fall foul of the law. But when it comes to a candidate’s credentials, qualifications and record of allegiance to the law, it is public matter and everyone’s business.
With due apologies to Justice Brandies for quoting him again, “publicity is justly commended as a remedy for social and industrial diseases; sunlight is said to be the best disinfectant.” In construing its obligation to hold free, fair and just elections, the ECP must interpret the mandate of the law and the constitution in a manner that requires maximum disclosure of information by prospective candidates. Such approach to its responsibilities will help strike the right balance between a minimalist and maximalist role. To the extent that the disclosed information suggests that the candidate falls foul of legal requirements, he ought to be disqualified. If not, he marches ahead into the peoples’ court.
Further, a distinction ought to be drawn between the concept of qualification and disqualification. Once a person is elected, the concept of ‘innocent until proven guilty’ would be attracted. Thus, stating that a sitting parliamentarian will be deemed disqualified unless he proves the validity of his degree is not a legally sustainable position. But when a candidate files his nomination papers and asserts that he is qualified to contest elections under the provisions of the law, the onus to prove the same is on him. And while undertaking scrutiny, the ECP must neither be oblivious to contemporary events nor hide behind a conservative interpretation of black letter law.
Democracy is about people choosing their representatives and living with the consequences of such collective choice. A legal system too enforces the same principle of autonomy. Each individual has freedom of action and when he/she chooses to act in a certain way he or she is accountable for the consequences of such choice. It is essential for the health of our legal system, as well as our democracy, that someone caught with their pants down must face the legal consequences that follow. In discharging their duties our worthy election commissioners must remember that sins of omission are no less damaging than those of commission.

Email: sattar@post.harvard.edu