HEADS I win, tails you lose. The amendments made to the Election Act, 2017, on the fly, to paper over the various discrepancies in the elections held on Feb 8, 2024, change the entire electoral dynamic ex post facto. After the elections, the purported ‘winners’ are being given a free pass to change the rules of the game, to maintain their claim of being the winners, upending the manner by which those seeking to question the winning status could have brought that challenge before neutral arbiters.

As in the case of many elections held before, the ones that were held earlier this year were tainted. Concocting numbers in the Forms-47 was the new modus operandi.

In the past, elections have been managed through other means as well. In recent memory, in the 2021 Daska by-elections, almost a couple of dozen presiding officers simply went missing, and remained so for an entire night. They emerged in the morning, to present figures to the Returning Officer that were entirely different from the ones they had before they went missing. At that time, the Election Commission of Pakistan had some teeth; and the top court upheld the ECP’s directions for a re-poll in the entire constituency. The returned candidate after the re-poll was from the PML-N — and not a favoured horse then.

That was then, this is now. The intrusions of that time were not kosher, we are told. The intrusions of today, they say, are not only kosher, but are, in fact, necessary. It appears that if meddling took place in the past, it gives a complete carte blanche for meddling in the present, and also probably in the future.

Fairness dictates that the rules not be changed once the game has been played.

An election is a competition of sorts. And in any competition, changing the rules ex post facto, that is, after the fact, is considered to be completely out of bounds. In systems where fairness matters, the rules of the games are decided before the game is played. Fairness also dictates that the rules not be changed once the game has been played. In a race, the winner is to be determined in accordance with the rules that exist before the race begins, and in keeping with the manner prescribed by those rules.

But in our system, where fairness has limited value, the reality played out like this: a bunch of candidates were said to be elected. When those contesting against the deemed successful candidates challenged the ‘win’, the ECP members initially twiddled their thumbs, buying time so that the issue could be punted to the election tribunals.

According to the rules existing at the time, the election tribunals were to comprise the justices of the high courts. On seeing that some may not rubber-stamp the victory, the rules of the game were changed. Into the mix were introduced retired justices, who were previously out of a job but now had been bestowed with one. The dice were loaded.

But what about fairness? What about it, they say. The previous win of the now-out-of-favour horse was also achieved with the help of those who back horses. In the previous round, a horse, in fact, had to be taken out of the race altogether — disqualified. One may bring up the saying that two wrongs do not make a right, but those who back horses know that one wrong may also mean — even when the wrong is of their own doing — that a strong justification now exists for another.

The Supreme Court in the ‘Sunni Ittehad Council’ case held, in so many words, that the reserved seats be allocated to a party that was hamstrung, and its members forcibly compelled to take a route that could then be made the reason for being deprived of reserved seats.

Granting those seats to other parties — the beneficiaries — just did not add up to fairness, no matter how the issue was sliced. The current members of the National Assembly, who stood to lose, already having blockaded efforts to check the veracity of the claims questioning their eligibility as members, swung into action again. More amendments followed. The rules of the game were changed some more. Conflict of interest? You bet. Fairness? You tell me.

When the Assembly members, changing all possible rules to remain in power, continued to act in their own interest, which among the institutions of the government, could and should have possibly raised a challenge?

The judiciary, probably. And hence, the 26th amendment.

The desire to win at all costs is a terrible thing. It makes one forget the basic norms, the ideas of fairness and truth that are necessary for any semblance of the game to remain relevant. But above all, it makes one forget that a win with a loaded dice is no win at all.

The writer is a lawyer based in Islamabad.

awahid@umich.edu

Published in Dawn, October 4th, 2024