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Judging Fakhru

by Benazir Shah and Adnan Siddiqi
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Judging Fakhru

Amean J. for Newsweek

He’s Pakistan’s best bet for free and fair elections. But can Fakhruddin G. Ebrahim deliver?

[dropcap]F[/dropcap]akhruddin Ghulam Ebrahim put a series of questions to an important-looking Army general he ran into late last year at a government office in Islamabad: Will the Army help keep the peace on polling day? Will elections be held at all? It was a lengthy, casual conversation at the end of which Ebrahim, Pakistan’s chief election commissioner since July, asked the man he had buttonholed to convey his greetings to the Army chief. The man being spoken to was surprised. He was, in fact, the chief himself, Gen. Ashfaq Kayani.

The December exchange has been narrated widely, cited as evidence that the 85-year-old former Supreme Court justice may not be the right man to shepherd Pakistanis to the national and provincial polls scheduled for May 11. Who doesn’t recognize Kayani after all? “I don’t understand why it is a big issue that I didn’t recognize him—the National Database and Registration Authority office is not a place you expect to meet Army generals,” Ebrahim tells Newsweek, disagreeing with the popular take on his chance encounter with the Quiet Commander. “His pictures do not do him justice, he is actually quite handsome.”

Ebrahim’s inability to place Kayani is excusable. Since the last nationwide elections were held five years ago, the power to affect and influence the democratic process and election results has shifted from the Army almost exclusively now to the Supreme Court led by Chief Justice Iftikhar Chaudhry. The 2013 elections are not historic because they follow an elected National Assembly having completed its full five-year term. The 2002 National Assembly accomplished the same mean feat. This year’s elections are historic because of the unprecedented emergence of the judiciary as the supreme force in the political process, and the chief justice’s repeated resolve to lead the transition from one fully-civilian elected federal government to another.

Coarse Corrections

The judiciary has already blackballed some candidates seeking elected office and is eyeing others over alleged and actual misrepresentations about their college degrees, nationalities, wealth. It has demanded expeditious revisions of voter lists to screen for dastardly duplications, and it is adamant Pakistani expats should be enfranchised. Some of the court’s demands, cloaked in irresistible rhetoric that taps the underlying resentment Pakistanis harbor toward politicians, are unarguably merited. Others, like the order to redraw constituencies in Karachi and to apply the impossible, saintly standards of Muslim piety required of all those who seek a berth in Parliament, may be impractical and have been criticized, perhaps unkindly, as politically driven. In order to ensure free, fair, and transparent elections, will Ebrahim be able to stave off pressure from a court in overdrive and at the same time keep all or most political parties from kicking up more than the usual electoral controversies?

Take the Karachi case. The chief justice’s order to redraw constituencies disadvantages the Muttahida Qaumi Movement, which has had a blood feud with him since May 12, 2007—during his street-fighting days against President Pervez Musharraf—when gunmen allegedly affiliated with the party attacked and killed his supporters. Implementing the court’s delimitation directive could risk polarization and fuel further political violence in the city of some 20 million. “It cannot be done!” said Ebrahim, “How can you redraw a constituency without an updated census? It is as simple as that.”

“Everyone has his role fully defined in the Constitution and they must stay within their limits,” says Ebrahim about any injudicious involvement in the democratic process from other institutions. “That is all I can say, nothing more.” But where the Election Commission of Pakistan had once held an inch, it has had to eventually surrender a mile, folding to pressure. Just days after his March 10 interview with Newsweek, Ebrahim bowed to court pressure on Karachi. The MQM has protested the decision and alleged gerrymandering. “Karachi has been made a problem city,” says Ebrahim. “Weaponization is a big problem.”

Ebrahim with Zulfikar Ali Bhutto

Ebrahim with Zulfikar Ali Bhutto (center). Courtesy of Fakhruddin G. Ebrahim

Pressure from Chief Justice Chaudhry, whose popularity comes in large part at the expense of politicians—or politicians from certain parties—is difficult to overcome, even for a man as widely respected as the blunt and curmudgeonly Ebrahim. Judges in general and Chaudhry in particular are popular. It is perhaps in acknowledgment of this reality that two of the four interim provincial chief ministers are former judges, as is the 84-year-old Mir Hazar Khan Khoso, plucked from oblivion as the country’s interim prime minister by Ebrahim’s Election Commission after a committee of politicians failed to agree on a name.

Democracy, of course, owes a debt to Chaudhry and to the lawyers who twice campaigned selflessly, tirelessly, endlessly for his restoration as chief justice. It was their Pakistan Spring which created the space for free and fair elections in 2008 and which allowed self-exiled ex-prime ministers Benazir Bhutto and Nawaz Sharif to return home. (At the time, Ebrahim was representing Sharif and had petitioned the courts to let the politician arrive in Pakistan in peace.) Now one of Pakistan’s most powerful men, Chaudhry sees it his duty to make good on his promise for change.

This holds well on paper, but the road to controversy is paved with the best intentions. At the Supreme Court’s saying, the Election Commission printed copies of the nomination form for candidates without waiting for approval from the constitutional authority, President Asif Ali Zardari. The form, meant to be comprehensive, is hastily prepared, according to one political activist working on a National Assembly campaign from Lahore. “It asks the candidate to state whether he or she is a national of another country, and if so, whether he or she has a foreign passport, and if so, to state the passport number,” he tells Newsweek. “This is like the U.S. visa application asking whether the applicant belongs to a terrorist organization, and if so, to please state the name of the terrorist organization.” Individuals who are not solely Pakistani citizens cannot run for public office under the Constitution.

“Our purpose is not to debar people,” says Ebrahim of the new disclosure requirements. “One of the questions requires candidates to specify a single act he or she has performed since the last elections. Everyone must know what kind of person the candidate is; he is public property. I have to ask them: Do you have a car? Does your wife have a car? But [the politicians] don’t like these questions. They say I am asking too many questions.” Ebrahim says the changes in the form are good for the country. He also wants to present a fresh new choice to Pakistan’s 86.1 million registered voters at some 75,000 polling stations on May 11. “The ballot paper should give the option of ‘None of the above,’” he says. (Facing outcry from politicians, the Election Commission announced on April 5 it would not push for this quirky but democratic option.)

Candidates are also required to provide details of their travel over the last three years, including details of their expenditure on foreign visits, official or personal. While some candidates may be organized enough to provide such information, it is unlikely that the Election Commission has the capacity to process volumes of data from tens of thousands of aspirants for the national and provincial legislatures—and that too in the seven-day scrutiny period it has prescribed for itself. The Commission is to render its decisions allowing individuals the opportunity to contest elections by April 7. Those who are refused the privilege can appeal within three days. The revised list of candidates finally allowed to run for public office will be notified by the Commission after that, on April 19.

It will require an army for scrutiny of candidate declarations that is anywhere close to exhaustive, as the Supreme Court has wished. The Commission is optimistic. “There had always been a scrutiny process, but it was an eye-wash and lasted all of 30 minutes,” says a member of Ebrahim’s staff. “This time the returning-officer will collect information on the candidates from the National Accountability Bureau, the Federal Board of Revenue, and the National Database and Registration Authority within 48 hours through the online system we’ve set up.” Even if these agencies provide unfettered and uncharacteristically competent assistance through the new “online system,” the Commission, with its staff of some 2,000, has its work cut out for it. All returning-officers meeting, screening and shaming candidates are borrowed from the judiciary, and they report to the Supreme Court not the Election Commission. Several of the Commission’s final decisions regarding election hopefuls will inevitably end up in court, back to the judges. The application, uniform or otherwise, of the piety provisions of the Constitution will be a whole different headache.

“Elections are a very touchy topic; politicians believe in winning at any cost,” says Ebrahim. “In this country, if you are a politician, you better be in power or you will be in jail. The options are very clear.” But this time is different, he says. “Political parties have come to the realization that there should be elections. I told them the first casualty will be the politician if there is rigging. I will remain the election commissioner, but you will not be there.” He hopes all candidates will keep court-baiting mudslinging to a minimum.

Acts of Commission

Ebrahim at his home in Karachi

Amean J. for Newsweek

Created under the 1956 Constitution, the Election Commission was empowered in 2002 by General Musharraf through a raft of new requirements of political parties, including mandatory intraparty elections and publishing of audited accounts. This empowerment was grudgingly acknowledged by the Pakistan Institute of Legislative Development and Transparency, an independent think tank, in its February 2008 report, “How Independent Is the Election Commission of Pakistan?” “ECP is not totally devoid of teeth to bite. What is required is political will and commitment to act—to act when it is essential for the sake of free, fair, impartial and transparent elections,” states the PILDAT report.

“These are basically four people meeting in a room, saying ‘you are the president, you are the vice president,’” says Ebrahim of intraparty polls. “What we have right now is a system where if you are my daughter, you are the party’s leader. If I have a son, he is also the leader.” Ebrahim also gives marks to Musharraf for introducing affirmative action to the political process: “Parties should thank Musharraf for bringing real change in this country by paving the way for women’s empowerment.”

The 18th Amendment to the Constitution signed into law by President Zardari in 2010 gave the powers of the chief election commissioner to the five-member commission, which includes four retired judges representing each province. The term of the chief election commissioner was extended from three years to five, and the age limit for the election czar was done away with. The result is a commission that is more democratic. In other words, Ebrahim has less power than his predecessors did to ram through the changes he wants even within the organization he now leads.

“This is a very strenuous job for the simple reason that you cannot keep everyone happy,” says Ebrahim. By his reckoning, the upcoming polls will not be the ninth since 1970, but only the country’s third real elections. “The first one [Zulfikar Ali] Bhutto held, the second the General held [in 2008].” By way of a disclaimer, he adds: “There are a lot of limitations as far as the elections are concerned. We have had no experience in conducting elections.”

Ebrahim, alert to his BlackBerry during our interview, is capable of surprises. The father of four, and grandfather of nine, works 12-hour days, seven days a week, with the spryness of a man a third his age. Asma Jahangir, former president of the Supreme Court Bar Association of Pakistan, who has known the Martin Luther King, Jr.-quoting Ebrahim since 1986, marvels at his discipline and propriety. “He will never give you any advantage of being a friend,” she tells Newsweek, recalling the time he made her work on a brief all night so he could review it by breakfast. “He is the most honest, straightforward, and innocent person I have known. His innocence, in fact, often gets in his way.”

Innocence or idealism, the Election Commission has rolled back several of the last government’s last-minute decisions, including their doling out of sinecures and shuffling of the bureaucracy, and even Parliament’s amendments to the election laws which were made in the days just preceding its dissolution. The Commission has banned state officials from stumping, put a cap on allocation of new funds for development programs, and directed 130 out of 200 registered political parties to hold intraparty elections. It’s working with the Higher Education Commission to verify the authenticity of the candidates’ college degrees—even though this is no longer a requirement to contest—and with the State Bank of Pakistan, the Federal Board of Revenue, and utility companies to identify loan defaulters, tax evaders, and freeloaders.

The Commission has also issued a fairly idealistic code of conduct for political parties and their candidates. It has prescribed sizes for election posters, hoardings, banners, and leaflets (these, for example, can’t be larger than 9 inches by 6). It has limited the use of loudspeakers. It has proscribed wall chalking. It has asked candidates to limit criticism of opponents “to their policies and programs, past record and work” and to refrain from making “unverified allegations and distortion of facts” or “criticism of any aspect of private life not connected with the public activities of the leaders or workers of other parties.” It has banned all weapons, firearms—and fireworks—from election rallies. The campaign spending limit has been fixed at an unrealistic maximum of Rs. 1.5 million for National Assembly candidates and Rs. 1 million for provincial ones. All election expenditure is to be routed through the campaign’s official bank account and must be properly recorded.

Violations of the Election Commission’s code will be the norm. And it will have its hands full dealing with complaints from candidates, the media, and the public.

Managing politicians is still the easy part. The Taliban have threatened to disrupt the democratic process by unleashing mayhem on and ahead of Election Day. What’s more, they have picked parties whom they favor and made plain their disgust for others, like the PPP, MQM, and Awami National Party. On March 12, the district election commissioner of Quetta was shot dead. Pamphlets warning citizens against voting have emerged across Balochistan. “The single most important problem in the elections is maintenance of law and order,” says Ebrahim, adding that even though the federally-administered tribal areas in the north are now covered under the Political Parties Act of 1962, allowing parties to campaign there, he has no idea how free, fair, and peaceful elections can be held in the strife-torn border belt. “It is a very difficult area. Most of the voters are in tents.” Ebrahim is a true believer in the transformative power of the democratic exercise. “A Muslim killing a Muslim in the Islamic republic of Pakistan in the name of Islam!” he scoffs. “Elections are the only answer to religious extremism.”

Going to the Pols

The forthright Ebrahim was the consensus candidate for chief election commissioner between the PPP and Sharif’s Pakistan Muslim League (Nawaz). And yet he maintains a pragmatic take on politicians. “No one walks into my office with the view that I can organize free and fair elections,” he says. “They all come here looking for ways I can help them win.” Ebrahim thinks Musharraf’s return to Pakistan is a “mistake,” but, at the same time, he says, “it is good he has come. I don’t agree with him living in exile.”

Aware of the clear and present challenges, Ebrahim also has his doubts about the elections, even now. “Everyone I meet expects me to perform miracles,” he says. “I worry sometimes that it may not work, but where does that take me? I need to continue my efforts regardless of what happens.” But he says there are several factors working in his favor, that embolden him—a vociferous, watchful media; young, excited voters hankering for change; an activated civil society; discussions about rights and freedoms—and which may lead to a voter turnout as high as 60 percent. “When I see the enthusiasm of the people, I am inclined to think it is possible.” The presence of international observers at the polls should also help, he says. “We are very sensitive about foreigners, we behave a little better.”

Ebrahim’s obliviousness to power—failing to recognize Kayani, for example—also works in his favor. He is seen as a hardnosed man who is refreshingly unimpressed by power brokers and newsmakers, and thus capable of being evenhanded. “No one can promise that the democratic exercise will be completely free and fair,” says Ebrahim. “But I am confident the 2013 elections will be different.”

Judging Fakhru

From our April 5, 2013, issue.

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2 comments

Mehreen May 13, 2013 - 9:44 am

Hope you’re eating your words now

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Editor at Trango August 28, 2013 - 6:56 am

I would have expected this article be deleted from public record for all eternity by now.

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