Sunday, December 17, 2017

None of the above

Reginald Dumas logo24

Mark Fraser

In September 2013 the Supreme Court of India handed down a judgment in the matter of the People’s Union for Civil Liberties versus the Union of India. In essence, the plaintiffs had argued that certain election rules were constitutionally invalid “to the extent that (they violated) the secrecy of voting which (was) fundamental and fair elections and (was) required to be maintained...” They had therefore asked the Court to declare the rules in question ultra vires the 1951 Representation of the People Act and the Constitution.

The court agreed with the plaintiffs and directed the Election Commission to make “necessary provision in the ballot papers” (and electronic voting machines, or EVMs). But it went further, and said that “another button called ‘None of the Above’ (NOTA) may be provided in EVMs so that the voters who come to the polling booth and decide not to vote for any of the candidates in the fray are able to exercise their right not to vote while maintaining the right (to) secrecy.”

Pointing out that the voting machines in the Indian Parliament had an “Abstain” button in addition to the “Yes” and “No” ones, the court said that its NOTA proposal was “exactly similar...since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote.”

The court reasoned that “(for) democracy to survive” – India is the largest and most vigorous democracy in the world – “it is essential that the best available men” (and women, too, I imagine) “should be chosen as people’s representatives for proper governance of the country. This can best be achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy the voter must be given an opportunity to choose (the) NOTA button, which will indeed compel the political parties to nominate a sound candidate.”

The court felt that “(w)hen the political parties...realise that a large number of people are expressing their disapproval with (sic) the candidates being put up by them, gradually there will be a systemic change and the...parties will be forced to accept the will of the people and field candidates who are known for their integrity.”

Also, the court said, the NOTA option would “accelerate...effective political participation...and voters in fact (would) be empowered... (It would) foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people.”

It is going to take a long time before the full effect of the court’s ruling, once implemented, can be measured. Whether voters can indeed change the pernicious habits of political parties and investors merely by dismissing their candidates as unsuitable is a leap I am not prepared to make. I think voters have to do much more than this, but, as the Chinese say, a journey of a thousand miles begins with a single step. Politicians and their disciples are a breed apart from the rest of us. They aren’t moved by “high moral and ethical values” (which the court evidently is persuaded can be achieved) so much as by the lure of office, which for them is power.

And to obtain, or hold on to, power, and keep their troops happy, they are prepared to do and say virtually anything. This is Niccolò Machiavelli writing five centuries ago: “A sagacious prince” (read “leader” for “prince”) “cannot and should not fulfil his pledges when their observance is contrary to his interest, and when the causes that induced him to pledge his faith no longer exist...(The) prince should know how to be a great hypocrite and dissembler. For men are so simple, and yield so much to immediate necessity, that the deceiver will never lack dupes.” Cynical, you say? But can you refute it? What changes for the better have there been in the last 500 years? High moral and ethical values! Well, we must keep on trying to improve, mustn’t we, as the Court was suggesting.

Actually, I have been seeing some positive signs in T&T. Not, to be sure, in the political class and its acolytes; they seem stuck in a world of self-congratulation and unenlightened finger-pointing. Rather, I’m finding a growing number of civil society groups and individuals willing to state their unhappiness, ethical and other, with what is happening around them. They are often apprehensive, not knowing if and when and where a backlash might come, but they are just the same less and less reticent. Here as in India, that is most welcome, and the court’s view on speeding up and widening effective political participation, and empowering voters, must very much be taken into account.

There was a great deal of discussion in the Indian case of whether the right to vote in India was statutory or constitutional. Article 4 of our Constitution lists our enshrined rights. No right to vote appears, but rather the right to join political parties and to express political views.

Could voting NOTA in elections be considered the expression of a political view? My recollection is that the late Dennis Pantin thought so. I propose that we look at it and, if feasible, include the relevant provision in our election laws and rules. I’m certain our political parties would have no objection: they always tell us about all their hard work on our behalf, and should therefore welcome the opportunity to show how acceptable and “worthy” they and their candidates really are. The report of the Ramadhar Constitution Commission is silent on the issue, which the Commission would probably say didn’t fall within its mandate – whatever that mandate was, since the report, astonishingly, contains no terms of reference at all. Is it too late for the Commission to visit this subject? And what do the legal experts think?


* Reginald Dumas is a 

former ambassador and a 

former head of the Public Service