Structural weaknesses in the legal system make representative mandates vulnerable to the influence of non representative forces
General elections are all about voters electing their representatives and sending them to parliament to translate their expectations into policies and practice and to run the country. This is the central premise of a functional representative democracy. This representative nature of a democracy, paradoxically, must be underwritten and legitimised by non-representative institutions where not people’s representatives but executives or third-party appointees, such as the bureaucrats and judges, seal the fate of the electoral exercise. A delicate balance thus needs to be struck. In Pakistan’s troubled history these roles have often assumed exaggerated deviations that have ended up muddying the quality of representative democracy.
While basically the entire state machinery constitutes the implementing authority that supports the electoral exercise, in Pakistan three principal institutions have a key part of the responsibility of facilitating elections based on varying mandates. One is the Election Commission of Pakistan (ECP), the second is the judiciary and the third is National Database and Registration Authority (NADRA).
The ECP is a constitutional body with the principal task of holding elections based on a complex set of responsibilities such as registering political parties and keeping them compliant with the laws, registering voters, maintaining periodically updated voter lists, demarcating electoral constituencies, inviting and scrutinising election candidates, appointing, training and supervising election officials to manage voting centres, printing ballots, holding elections, managing the vote count, declaring results and adjudicating electoral disputes, among others.
The litmus test of the effectiveness of the ECP is the acceptability of the outcome of the elections. Of the 11 elections held between 1970 and 2018 not one passes the litmus test albeit the ECP does not bear the principal guilt for most of them. This is because it has rarely enjoyed the exclusive exercise of its mandate which has often been encroached by not only by autocratic parties but frequently the security establishment.
The ECP is, of course, heavily dependent on the NADRA for updating its voter lists as only those above 18 years of age who have been issued with a computerised national identity card are allowed to vote. For demarcation of electoral constituencies, the census is also important. The latest census results were out in 2017 but not acceptable to some parties, thereby affecting rationalisation of the sizes of electoral constituencies and therefore the number of seats in provincial and national legislatures. But the ECP is not to blame for the failure of other departments for not being primed for more representative constituencies if the results are not politically acceptable, leading it to holding of elections on the previous lists.
As of January 2022, NADRA had issued CNICs to over 120 million people, which is 96 per cent of the eligible adult population. However, the gender gap in issuance of cards remains large – over 10 million fewer women are registered as voters compared to men. While again not the ECP’s fault and not completely the NADRA’s either, the net result is a skewed representation of women’s electoral will in the outcome of elections.
Perhaps the most glaring omission on the part of the ECP is its perennial inability to optimally enforce its code of conduct. Only this month it has twice failed to prevent an errant Prime Minister Imran Khan, as well several of his ministers, from addressing public rallies that are in contravention of the conflict-of-interest principles. It has also often failed in letting high government functionaries challenge it without handing out deterrent punishments.
Then there is the judiciary whose role has been frequently questionable when it comes to adjudicating disputes over representative mandates resulting from elections. Whether it is forcing out prime ministers (Yousuf Raza Gilani), disqualifying prime ministers, ministers and others (Nawaz Sharif, Faisal Vawda, Jahangir Tareen), upholding patently unconstitutional ouster of elected governments (Benazir, Nawaz and Junejo) by the security establishment and validating martial laws (Ayub, Zia), the judiciary has delivered verdicts that run counter to popular representative mandates materialised through elections.
But perhaps the single most larger-than-life – and certainly unconstitutional – influence of a non-representative actor that has negatively affected representative democracy, often debilitatingly, is that of the security establishment. Theoretically, they have nothing to do with elections or representative democracy; and legally, they are part of the government, answerable to the defence secretary, but it has almost always been at the heart of the dysfunctionality that ails representative democracy in Pakistan.
For example, securing an unjustified extension to the tenure of the army chief, helps expand the footprint of his influence over the elected government. Several army chiefs, who are essentially paid government servants, appointed by Bhutto, Benazir and Nawaz, for example, ended up orchestrating the ouster of the prime ministers elected by the people. Other army chiefs ended up appointing prime ministers not elected to that role by the people.
Another indicator of the influence of the security establishment over the representative polity is attending meetings with the prime minister in the absence of not just the defence secretary (who is the military’s boss and reports to the defence minister) but also the defence minister (who is the boss of the defence secretary and reports to the prime minister). This is clearly a process that extends undue powers of outsized influence to government officials thereby blunting representative mandates resulting from elections.
How can the often-subversive influence of non-representative state actors on representative politics – including elections and elected governments – be minimised? This would require deep legal reforms that empower the ECP further through greater enforcement authority, disallowing the legal ouster of prime ministers by means other than the mode of their election – through only vote of confidence/no-confidence rather than the courts; communication with the military in the presence of the defence minister; regular census taking; rationalising the tenure of the assemblies and fixing the maximum number of terms for elected prime ministers (say two); appointment of armed forces chiefs based on seniority and for only the duration of their remaining service like in the case of the chief justices; and strengthening the local election system to serve as a broader representative electoral mandate for governance. If such reforms are not undertaken, the non-representative forces will continue keeping representative mandates hostage. If legal reforms are not undertaken first, the trends are expected to continue for the upcoming elections.
The author is a political analyst and media development specialist. He can be reached at firstname.lastname@example.org.