The ritual of the ballot

An election is a moral horror,
as bad as a battle except for the blood;
a mud bath for every soul concerned
in it.
– George Bernard Shaw

The story of democratic transition in Southasia is incomplete. Although all members of SAARC possess autonomous electoral-management institutions or election commissions, there have been notably few investigations into strategies used to enhance their independence. Such a lack of priority placed on the institution of the election commission has been detrimental for democracy in all the countries of Southasia. Historically, election commissions (ECs) have been viewed as representing the interests of the ruling political faction, and have been known to rubberstamp flawed elections. This has been a view confirmed by the 2002 general elections in Pakistan (where an executive order reconstituted the EC just prior to the election) and in the 2003 presidential elections in the Maldives (where President Maumoon Abdul Gayoom was re-elected to a sixth five-year term with 90 percent of the vote).

The neglect of electoral institutions may now be changing, and not a moment too soon. Recent developments in the region's north, east and west have drawn new attention to the crucial functions performed by election commissions as guarantors of representational democracy. The reconciliation process in Nepal, for instance, has shown that the establishment of a meaningful form of representation is the foundation for a viable peace. The Election Commission of Nepal has been entrusted with the responsibility of conducting the upcoming Constituent Assembly polls (originally slated for June, but now all but officially postponed), an exercise that will involve the complete overhaul of current procedures and regulations. Similarly, the governments of both Pakistan and Bhutan have pledged to hold free and fair elections in 2007 and 2008 respectively – Thimphu's election commission was established as late as 2006, while Islamabad's commission has to shake off the perception that it has been a political pawn, an accusation that once again surfaced during the recent Sindh by-elections.

The terms free and fair, when applied to elections, belie their market origins. There is a general tendency in the literature on electoral systems to regard elections as an 'open market', where politicians compete with each other to maximise their votes. Elections are 'free' when there is a perception that the elections did not take place under coercion; and they are 'fair' when the competitors adhere to the rules of competition. However, no election can be either free or fair without effective control on the behaviour of political parties and candidates, in the same way that regulations are needed to ensure that commercial firms behave ethically.

Electoral malpractice in Southasia takes many forms. These include the buying of votes, the capturing of voting booths, the use of intimidation and violence, the misuse of state resources, and the mobilisation – or disenfranchisement – of voters on the basis of caste or community. Election commissions are thus confronted with a plethora of social practices, both formal and informal, that distort the meaning of the ballot. As a consequence, elections are often reduced to little more than a ritualistic act, largely lacking political significance.

A cursory overview of the elements of electoral management runs the risk of mistakenly conveying the impression that the tasks performed are essentially bureaucratic and routine. Yet each of these individual responsibilities is as important as the act of casting a vote. A comparative analysis of Southasian election commissions shows a high degree of uniformity in the responsibilities assigned to the institutions, despite variations in the level of autonomy. Important tasks common to all the commissions include the registration of voters, political parties and candidates; the counting of votes and certification of results; the appointment of observers; the delimitation of constituency boundaries; and the regulation of campaign finances. In addition to this complex array, the election commission is also important for its research on electoral systems, as well as its promotion of the education of voters and the norms of gender representation.

Not one of these tasks has been un-politicised. In Bangladesh, for instance, the Constitution envisaged the national election commission as an impartial body with extensive powers of electoral management. But the resignation of five election commissioners in late January and the outright postponement of the general elections brought the question of impartiality into sharp relief. The resignations were the result of a prolonged agitation led by the Awami League-led opposition over the perceived partiality of the EC towards the then-ruling Bangladesh Nationalist Party (BNP). One of the AL's central concerns had been the illicit addition of more than 12 million names to the electoral rolls, an accusation that was confirmed by a pre-election assessment report by the US-based National Democratic Institute for International Affairs. That report outlined other discrepancies as well, including a lack of regulation in the financing of political campaigns, and the inadequacy of measures to ensure the security of ballot boxes.

Carving out autonomy
How do election commissions ensure autonomy in managing elections? ECs in Southasia are performing a highly politicised task, and are attempting to bring about electoral reform in the face of increased partisan pressure. In the current context, it may be helpful for the region's governments and political watchers to explore the processes by which the Election Commission of India (ECI) has, for the past half-century, worked to reform the electoral process in that country, as well as the obstacles that is has faced.

Indeed, the contestation over transparent elections in India has been closely linked to the institutional evolution of India's election commission. Records from the Indian Constituent Assembly debates concerning the creation of electoral law indicate that policymakers were initially sceptical about the need to establish an independent election commission. At the outset, legislators ensured that Parliament would have supremacy in all matters of electoral law, and attempted to control the most critical aspects of the electoral system – ie, the power to legislate over term limits, the number of seats, the eligibility of electors and the delimitation of the boundaries of constituencies. As former Chief Election Commissioner James Michael Lyngdoh indicated in his book on the landmark Jammu & Kashmir assembly polls of 2002, electoral law in India with respect to corrupt practices was intentionally designed to apply only to individual offenders and political candidates – not to political parties, despite the fact that the parties were always considered the biggest violators during election time.

There have been four particularly important measures instituted by the ECI, which have allowed for a degree of official leverage over political parties and candidates. These include the stricter enforcement of the Model Code of Conduct for Political Parties since 1991; the linking of the official recognition of a party (and its political symbols) to that party's compliance with ECI regulations, after the 1994 modification of the 1968 Symbols Order; the implementation of the Electors Photo Identity Cards programme in 1993; and the extensive use of electronic voting machines since the 2004 general elections.

The Model Code of Conduct is a set of norms that governs the behaviour of political parties during elections. Many of the guidelines are not present in the body of electoral law legislated by Parliament, and include norms that prevent malpractices such as the distribution of gifts during campaigns, the disruption of social peace, the mobilisation of voters along communal lines, and the misuse of publicly funded media and other resources.

Ever since its inception in 1950, the Election Commission of India has been involved in a continuous process of litigation, and has been able to use critical judicial decisions to expand the purview of its constitutional mandate. At the centre of many of these decisions has been the contradiction between the Indian Constitution's Article 324 – which empowers the election commission to supervise all aspects of the election process – and Article 327, which ensures parliamentary supremacy in all matters of election law. It is significant that the judiciary has repeatedly asserted in its decisions that, in situations wherein electoral law has remained silent, it is well within the constitutional mandate of the ECI to formulate rules and regulations to ensure the smooth conduct of the election process.

The application of this principle can be seen in a Supreme Court order of 2000, with reference to Election Commission of India v Union of India and others. The order now enables the election commission to assume disciplinary powers over officials deputed for election duty from the states, as well as over central security forces. The principle was similarly applied two years later in Union of India v Association for Democratic Reforms, a case that was instructive as to how legislators try to obstruct electoral reform.

The problem of 'criminalisation' is inherently difficult to solve. The term itself refers to the increasing trend of candidates and legislators contesting elections in spite of having criminal pasts. Currently, for instance, there are more than 700 legislators in India's assemblies and 30 members of the federal Parliament that have criminal cases pending against them. The lack of incentives for political candidates to reveal criminal records or disclose their financial assets finally led to an important litigation process initiated by civil-society groups. This issue was further complicated because the making of false declarations about financial assets and criminal records was not a justiciable offence.

In 2002, the Supreme Court in New Delhi issued an order based on a petition by the Association for Democratic Reforms, making it mandatory for candidates to disclose criminal proceedings, assets, liabilities and educational qualifications in a pre-election affidavit. In response, President A P J Abdul Kalam was compelled by the cabinet to approve an ordinance that modified the Representation of the People Act of 1951, thereby making such disclosure non-mandatory. This was eventually challenged by several groups and, after a long litigation process, the court declared the ordinance unconstitutional. Out of this litigation emerged another important development – civil-society 'election watches', which, in most states, compile and circulate data on candidates during elections based on the affidavits filed with the election commission.

Compliance and empowerment
There are several lessons that can be drawn from the politics surrounding election commissions, particularly from the Indian context. First, the degree of autonomy attributed to an election commission is dependent on the concentration of power in the legislative or executive branches. We are most likely to find greater constraints on an election commission when power is concentrated in a single dominant faction (such as in the Maldives), a primarily two-party system (Bangladesh), or in a semi-presidential system (Pakistan). Conversely, the ability of legislators to pass laws limiting the powers of election commissions is decreased when there are several competing parties in the legislature, and thus a higher probability of an eventual veto. The manner of appointment of election commissioners is telling of the extent to which politicians are willing to forgo control and accept the high level of political uncertainty that accompanies competitive elections. Thus, the fact that the election commissioners in Pakistan are presidential appointees will be problematic in future elections.

Second, connected to the problem of autonomy is the issue of compliance. Election commissions are similar to courts in that they do not possess independent policing powers to enforce compliance with their regulations. As with courts, they are also envisaged as being accountable to the electorate and not to the legislative or executive branches. On the other hand, there are very few incentives for political candidates to disengage from behaviour that allows them to maximise votes.

This disjuncture – between the capacity of election commissions to enforce their regulations and the willingness of candidates to comply – is a very real one. The tension between these opposing forces determines the type of politics that surrounds electoral management. Overlooking the processes by which legislators strategise about institutions that safeguard the election process will be detrimental to the quality of democracy. As such, it is imperative for civil society to recognise the importance of ECs in shaping the normative basis for electoral democracy in the region. While George Bernard Shaw's adage quoted at the beginning of this article holds true much of the time, the empowerment of election commissions is one of the most critical routes through which the ordinary voter is assured that the act of casting a vote is indeed a meaningful one.

~ Samrat Sinha is a PhD candidate in International Relations at the University of Delaware.