Monthly Archives: January 2021

Bounty Hunters

Syed Sharfuddin

Bounty hunting is a recognised profession in the US. Universities offer Bachelors and Masters programmes in Criminology or Criminal Justice. It takes a person of sharp wit, knowledge of law and negotiation skills to become a bounty hunter. The person also needs to have good understanding of international money laundry conventions and financial transactions. Bounty hunters track and apprehend fugitives, negotiate plea bargains with them, bring them to justice and collect bounty, which is guaranteed by courts. In the US, 22 States require bounty hunters to be licensed. Four States, Illinois, Kentucky, Oregon and Wisconsin, ban bounty hunting altogether.

In Pakistan, bounty hunting is not yet an established profession but the concept has been in practice for over two decades and people involved in this field are criminal investigators and forensic experts. Bounty hunting is also strictly regulated in Pakistan. It is vested with the National Accountability Bureau (NAB), which is mandated to look at a whole range of financial crime, including white-collar crime from public sector fraud to recovery of bad loans and chasing return of illegally earned or unlawfully laundered money abroad. NAB is not answerable to anyone except the courts, should its decisions be challenged by those affected.

In theory, it is a brilliant mechanism to stop financial crime in a fast moving world where criminals are assisted by professionally hired lawyers and tax advisers to stay one step ahead of the law. But in practice, it works only if two prerequisites are met. One: the corruption watchdog is constitutionally autonomous and its employees are skilled professionals recruited through the most stringent processes and are empowered to act independently under set processes and procedures. Two: the persons chasing criminals are protected under law and outnumber those being chased. Unfortunately in Pakistan these two requirements are not adequately met, as the sheer volume of ever increasing new cases and the failure of NAB to bring a large portion of the stolen money back in the State treasury remains an illusive dream.

Pakistan’s problem is not corruption alone even though it is universally prevalent. Pakistan is inundated with a myriad of other serious issues. A national clean up exercise is necessary but not above the pursuit of a grand strategy for strengthening national unity, attaining human development and scoring consistent economic growth. Unfortunately, the national discourse of political parties, media and civil society is overtaken by the slogan of corruption so much that all other issues have become less important or almost invisible. It is the result of the changing social norms, which have made wealth as the yardstick of success in society. It also is the consequence of the breakdown of a social order in which rule of law is dispensed with for political expediency to buy support of major political players. It is the failure of courts to punish the corrupt if they are poor but look the other way for the corrupt if they can hire a rich attorney or are politically influential. As the saying goes, ‘in this Bath, everyone is naked’.

For example benefiting from illegal gains and money laundering is not confined to politicians alone. The several hundred cases filed by NAB in the country’s courts, and names popping up in the Panama Papers and the recently discussed Broadsheet awards show that the corrupt come from all backgrounds, professions, political parties and ethnicities. They cannot be stereotyped except in one sense that they are all Pakistanis. It is therefore unfair to leave everyone else out when discussing corruption and focus only on politicians on the assumption that if you catch the big fish, the small fish will either leave the pond or will learn to become honest. NAB has been in existence for over two decades but there has been no significant reduction in the level of corruption. In 1999 when General Musharraf established NAB replacing the politicised Quomi Ehtesab Bureau, Pakistan scored 87 out of 99 in the Transparency International’s (TI) Corruption Perception Index (CPI). In 2008, when General Musharraf left power and PPP was elected in government, TI’s CPI ranking for Pakistan was 134 out of 180. In 2013 when PML (N) came to power, Pakistan’s CPI rank was 127 out of 177. In 2018, when PTI formed government, TI’s CPI for Pakistan was 117 out of 180. In 2019 it slipped 3 points to 120 out of 180.

In Pakistan corruption is only a matter of opportunity. A poor village schoolmaster is honest only because he does not have the opportunity to make dirty money. Give him a revenue position, or a public dealing office with discretionary powers and then test his honesty. In ten years he will be trying to hide his illegally acquired assets in the same way as this country’s parliamentarians and bureaucrats have done when filing their asset returns, or as the businessmen and bankers have done by investing in offshore companies or purchasing overseas properties from illegally laundered money.

Institutional autonomy of an institution is as good as the people it employs to achieve its tasks and vice versa. A deficit of either compromises national credibility and affects the image of the institution and ultimately the State it represents globally. Within a couple of years after its establishment in October 1999 NAB abandoned its mission of catching the big alligators. Using NAB’s privileged information, General Musharraf prevailed upon compromised politicians and succeeded in forcing them to leave PML (N), as well as PPP, to support his martial law government. In 2007 President Musharraf signed the infamous National Reconciliation Order (NRO), which was later declared unconstitutional by the Supreme Court in 2009. NAB paid a heavy price for compromising its independence and instead of bringing stolen monies back home, it ended up paying hefty fines to overseas agents and creditors.

Since its establishment, NAB has had nine Chairmen. Among them four were ex-army generals, one ex-navy admiral, two retired judges, and two former bureaucrats. The Chairman is appointed by the President following consensus between the Prime Minister and the Leader of the Opposition for a term of four years.

Despite its wide experience in signing international investment contracts, Pakistan’s reputation suffered badly after a series of embarrassing setbacks, which placed Pakistan on the global spotlight for all the wrong reasons. In July 2017, a World Bank inter-state dispute settlement body, International Centre for Settlement of International Disputes (ICSID) asked Pakistan to pay US $5.976 billion to a foreign mining firm, Tethyan Copper Company for damages arising from the denial of a mining lease application following TCC’s feasibility work in the Reko Diq area of Baluchistan. In December 2020 a British Virgin Island court ordered attachment PIA’s Roosevelt Hotel in New York and Scribe Hotel in Paris, as well as freezing of PIA’s 40% interest in a company Minhal Incorporated, to enforce the payment of the TCC award by Pakistan. As of writing, the case is still on.

In 2017 the ICSID also asked Pakistan to pay $ 1.2 billion to a Turkish power company KKEU for damages arising out of the cancellation of a rental power agreement in 2013. The matter was, however, amicably resolved in November 2019 after President Erdogan accepted the request of Prime Minister of Pakistan to intervene in the matter and forego the penalty.

These adverse judgments against Pakistan reveal three things about international contracts: that these are not properly negotiated in the national interest perhaps due to incompetence of officials or due to political pressure to rush into signature; that the monitoring of implementation of agreements is either deficient or non existent to challenge the other party for any non-compliance; and that revocation of contracts without following through the dispute resolution mechanism not only costs the treasury financial losses but also taints its image as a country having little respect for the rule of law. Only time will reveal the true status of many other commercial agreements signed between Pakistan and other international companies.

In July 2019 the High Court of England and Wales upheld the December 2018 award of the London Court of International Arbitration (LCIA) in favour of an asset tracing company Broadsheet LLC, requiring Pakistan to pay $21.6 million for damages arising from the cancellation of a contract in 2003, in addition to payment of $11 million in costs and damages. NAB could not provide proof that it held Broadsheet LLC accountable for underperforming the contract. On the other hand, the claimants established that NAB had not cooperated with them in catching the identified targets for which they provided information. Pakistan appealed against the decision at the London High Court but lost the case in July 2019. The award was subsequently converted into a third party debt and paid by Pakistan, following a London High Court’s Financial Division’s order of 17 December 2020 for making payment to Broadsheet LLC by 30 December 2020.

In January 2021, a PIA commercial flight was prevented from flying back to Karachi from Kuala Lumpur after a local court ordered the plane’s custody for non-payment of lease charges. PIA subsequently paid $ 7million to the owners of the leased plane while their dispute was already before a London court on this matter.

These cumulative losses to the national exchequer were incurred in foreign exchange and do not take into account the billions of Rupees spent by NAB for hiring defence lawyers and travel and administration expenses.

With high level of corruption is found in every field involving commercial fraud, under invoicing, tax evasion, fake real estate and construction projects, corrupt practices by bureaucrats and stealing of public assets, including real estate, by fake documents and fraudulent entries, the ‘raison d’etre’ for the existence of NAB is not in question. What is in question is its mandate and method of recovery. In fact it is the method, which makes NAB an object of political bashing, threats and inducements. With discretionary powers left in the hands of NAB officials to negotiate plea bargains, it is obvious that a share of blame will also come to them for a conflict of interest. How can a traffic constable have the authority to issue a fine for traffic violation and at the same time say he is willing to settle the fine with the violator without inviting criticism? Due to their plea bargaining powers, NAB officials are unfortunately placed in great deal of psychological and political stress. Those who resist inducements find themselves suffocated in a sea of corruption. Others break down and resign or commit suicide. Some become part of the very corrupt environment they are employed to challenge and change. This is not sustainable.

The corrupt elements in the society shout at the top of their voice against the performance of NAB and call for its dismantling, but when they are caught red handed, they get away by simply returning the stolen money in part or full without payment of interest, costs or damages. The victims of fraud, whether, government or public, remain uncompensated for the fraud, and NAB ends up spending public money to trace and prove corruption. The civil society is luckily insulated against the pressure NAB goes through in bringing every major case to light, but it conveniently holds NAB responsible for every bad headline on the subject of corruption. Does NAB really deserve it? It depends who you ask this question.

With this in view the following recommendations are presented to the government for the reform of NAB.

1) The Law governing the constitution and mandate of NAB is the National Accountability Ordinance 1999 (xviii of 1999) and the National Accountability Amendment Act 2016. This needs to be replaced by a Constitutional Amendment Act to make NAB an autonomous body under the Constitution such as the Election Commission of Pakistan with its own independent mandate, recruitment authority and budget. NAB Chairman should have the power to seek information from all government agencies and establish its own Joint Investigation Teams using the power to engage State resources to aid its anti corruption work.
2) As an exception to the rule, NAB staff should be selected through international recruitment without the condition that they should be Pakistan nationals. This is to help NAB get the best of expertise in preventing money laundering and bringing back all illegally acquired proceeds abroad. The Parliament should also fix the minimum level of corruption in monetary terms that should come under NAB’s purview unless other agencies of the government have failed to recover it and the amount in question justifies NAB’s involvement.
3) The power of plea-bargaining should be removed from NAB to avoid any semblance of conflict of interest. Instead, NAB should be empowered to initiate independent enquiries, investigate complaints and warn the accused to pay up the stolen money together with accrued interest, costs and damages. Persons who agree to return stolen money should be given repayment plans with unmovable deadlines after which their cases should be referred to court for attaching their family properties for public auction. If the concerned persons pay the total money with interest, costs and damages in a short term, they should not be referred to the courts for criminal conviction, nor should they be named and shamed publicly. The message of NAB should be: “feel free to indulge in corruption, but if you are caught you will pay dearly”.
4) Parliament should approve the doubling of the number of accountability courts from the current 30 to 60 to hear NAB references and expedite them in maximum three hearings. There is an absolute necessity to increase the current number of judges deputed to hear NAB cases.
5) Parliament should enact legislation to encourage greater coordination between NAB and other agencies of the state in investigating fraud and exchanging intelligence to build its prosecution.
6) The performance of NAB should be reviewed by Parliament every year on the basis of moneys recovered. The NAB chairman should set out the targets and a work plan for the year ahead and highlight it in his institution’s Annual Report for the preceding year to assess NAB’s performance.
7) Parliament should enact legislation to fix the jail terms for convictions and other punishments such as suspension from job, withdrawal of passports etc including for convicted corrupt bureaucrats, politicians and serving military officers deputed to civilian posts outside their military roles, in order to set the parameters of punishment in proportion to the fraud committed. This will facilitate the Accountability Courts’ work in speedily disposing of convictions after due process.
8) NAB should summon a person to answer an enquiry not when a complaint is received, but when NAB has gathered sufficient information about the complaint and has ascertained through state resources that there is indeed a case for fraud or occurrence of public loss due to wilful negligence. It is unfortunate fact that NAB arrests high profiled personnel on corruption charges but keeps asking the courts to extend their custody under judicial remand in order to complete its investigation. This is not justice. This only weakens the case of NAB against corruption and gives it a political colour even if NAB is not politically influenced.
9) Cases referred by NAB to accountability courts should be dealt with the same seriousness and speed as terrorism cases. The objective of the courts should be to dispense justice but to also convey the message to the public that listening to NAB to pay up is easier for the corrupt than have their cases referred to the courts. No case should take more than three hearings or ninety working days, whichever is earlier. If respondents do not appear in hearings with the exception of leave granted for death of immediate relatives, court proceedings should continue in absentia and judges should issue ex-parte verdicts, which should be upheld on appeal. The convictions should not only include full and immediate return of stolen money with interest and costs of NAB, as well as the cost of accountability court, but also a jail term depending upon the volume of fraud involved.
10) NAB should be politically blind in addressing corruption and ensuring that those involved are brought to the book irrespective of their profession, political standing, social status, ethnicity or faith.

This is as far as NAB can go in eliminating corruption in the country. However, there is another side to addressing the culture of corruption and calling everyone fake and a robber. The government and opposition are unfortunately so much caught in their own anti-corruption narrative that there is nothing positive to convey to the common man. This narrative has divided the nation into two groups, the pro government group and pro opposition group, each accusing the other of corruption and stealing. Both the government and opposition need to stop walking this dangerous course because they are unwittingly making the work of NAB hard. The people want to hear from the government what it is doing to create new wealth instead of telling them that it is trying to bring the stolen billions to fill their pockets. As payment of court awards on foreign court orders has shown, this will never happen. The opposition should also put a break on its mantra of accusing the ruling party of hiding its corruption and instead give the people an alternate shadow policy on things that matter to them most such as reviving the economy, improving health and education, reducing poverty and reinvesting in infrastructure and industry. If they fail to breach this gap, a new bounty hunter smarter than them will always fill the vacuum and take away whatever little is still left in the public kitty.



Mr Syed Sharfuddin is a former Special Adviser, Political Affairs Division, in the Commonwealth Secretariat, London, UK.

A Memorable US Presidential Election: A Commonwealth Perspective

By Syed Sharfuddin,

The Commonwealth does not observe elections in non-member countries. Where it does, the observation is subject to receiving an official invitation from the concerned government and the Commonwealth Secretary-General certifying that the observation will add value to the democratic practice and processes in the electing country. Democracies with strong electoral systems have their own local observers who endorse the election and certify that it is conducted freely and fairly and reflects the will of the people. Although all countries have their own local observers, in weaker democracies they lack neutrality and public legitimacy. These countries need neutral and non-partisan international observers to give a seal of approval for their elections.

Commonwealth Observer Mission comprise constitutional experts, heads of election management bodies, retired politicians, working journalists, and representatives of women’s groups, youth organisations and democracy promoting organisations. Sometimes the Commonwealth deploys its own staff team to observe elections. At the conclusion of their observation, they submit a report to the Commonwealth Secretary-General for onward transmission to the concerned government and electoral bodies before making it public.

The US never was nor is a Commonwealth member even though it may qualify for membership of the association on the basis of its strong democratic credentials and its former constitutional association with Britain. The Commonwealth will never constitute an observer group to monitor a US presidential election. However, the conduct and aftermath of the last US presidential election of November 2020 has brought to the fore a number of issues which dominate the contents of election observation reports of many Commonwealth countries. It is therefore compelling to look at the US presidential election against the standard Commonwealth election observation template.

When Commonwealth election observers visit a country holding a general election, they examine its legal and electoral framework, the prevailing domestic political environment, its election preparations and availability of level playing field for all political actors. A few days before the poll, the Commonwealth mission deploys its observers and experts to monitor the campaign, the voting process, the count and tabulation of results. The observer mission also ensures that the results reflect the free will of the people and are credible and accepted by all stakeholders, including the major political parties and candidates. Their report, which is issued in their individual capacity but bearing the stamp of the Commonwealth, also mentions any shortfalls noted by the mission in the conduct of the election as a whole, as well as includes recommendations for improvement, based on the country’s democratic strengths and international best practice.
Since I was myself not present in the US last November to observe the elections, I have relied on the reports of three international organisations, the OSCE, ODIHR and OAS, which deployed observers in many US states to observe the election. I have also relied on the reports of other US domestic organisations, coalitions and media election-cells that followed developments related to the US election not just on the Election Day, but also many days before and after the election. While I have used the Commonwealth template to analyse these elections, my analysis is entirely personal and does not represent the official position of the Commonwealth Secretariat or its Secretary-General who alone has the authority to constitute a Commonwealth mission to observe elections in member countries or comment on their outcome.

The 2020 US Election
This was one of the most popular elections in the US electoral history. According to several estimates, nearly 160 million voters exercised their franchise compared to the 136.5 in the 2016 election. Before Election Day, more than 93 million Americans had cast their ballots. A majority of these voters were Biden supporters. On Election Day, a majority of those who voted in person were Trump supporters. This was evident from the early results as President Trump took the lead in the early poll count, while vice president Biden came from behind to lead the race in the later count from postal ballots.

At this election, four presidential candidates dominated the candidates’ lists in a number of states. Two of them were the incumbent Republican president Donald Trump who was stopped from taking the second term in office unopposed, and former vice president Joe Biden who was the Democrats’ choice against president Trump. An additional 80 presidential candidates, including 27 women, appeared on various state ballots. The US media-houses established special election cells to cover the electoral campaign. However, only president Trump and former vice president Joe Biden received the most media coverage nationwide.

The presidential election was also combined with the election of the US Congress, comprising the House of Representatives and the Senate. There were 1,113 candidates, including 340 women, competing for the 435 vacant House seats. For the 35 vacant Senate seats, 151 candidates, including 42 women were in the run. Eleven candidates were elected unopposed for the House. Elections were also held for state and local executive offices, state legislatures in 44 states, as well as 66 state judges in 31 states, along with various referenda and initiatives. At least 27 LGBTIQ candidates across 21 states and 13 persons with disabilities in eleven states appeared on the ballot for federal elections.

The US Electoral College
The US Electoral College owes its evolution to the 12th constitutional amendment of 1804 but over the years it has undergone various amendments in the US constitution, weakening its democratic spirit but retaining its functionality. The Electoral College is formed every four years for a specific purpose after the states certify the results of the election in their counties to the House. The College comprises 538 electors. Its composition in each state is based on the state’s population. The College indirectly chooses an executive team of president and vice president from the same political party through a secret ballot a month after the November election. If the College fails to elect the president or vice president, the power to elect the executive head of the federation and his deputy is transferred to the US congress. In a dispute over their election, the US Supreme Court has the final authority to declare the winner.

The rules about the conduct of the Electoral College are not very clear although customarily they vote for the political team in line with the popular vote. In as many as 32 states, electors can be fined or replaced in accordance with the respective state law if they do not vote in accordance with the popular vote. The ‘first past the post’ system combined with the ‘winner takes all’ principle in deciding the winner gives all the reserved electoral-college seats in a state to the winning political party team, even if the popular vote in that state is cast in favour of the losing candidate. In every US election the result map of states represents either the red colour for the Republicans or the blue colour for Democrats. A winning team of president and vice president requires the combined strength of 270 electors from any combination of all the federating states and the District of Columbia to force the opposition candidates (president and vice president) to concede the election.

Under the US constitution, presidential and vice-presidential candidates must be natural born US citizens, at least 35 years old, and resident in the US for at least fourteen years. Senate candidates must be at least thirty years old and citizens for at least nine years. Candidates for the House of Representatives must be at least 25 years of age and citizens for at least seven years. Both senators and representatives, when elected, must be residents of the state in which they are elected.

Election Administration
In the US, election administration is huge, running into thousands of officials in all states. It is also highly decentralized, with no federal body mandated to oversee the entire electoral process. While this reflects the devolved feature of the federation, it also makes the US election a highly complex process with each state having its own laws and regulations for the conduct of election. In this equation the lawyers and courts have a much greater say in the conduct of election than politicians or other stakeholders. States are responsible for administering various elections with duties often delegated to some 10,500 jurisdictions across the country. In many states, the ruling party appoints its election management body. However, in twenty states, including the District of Columbia, election management bodies are either bipartisan or independent.

The Campaign
The campaign for the 2020 election was heavily undermined by the COVID-19 pandemic. It limited the traditional political rallies, which, unlike the campaign rallies in other countries, are festive and colourful events. However, disagreements on topics of healthcare, Covid-19 response, police reforms, racial justice, gun laws, jobs, poor manufacturing capacity and the environment bitterly divided the voters along party lines and threatened the racial and ethnic unity which has been the hallmark of the country’s strength and diversity. The long political process which started from the presidential primaries in the states of Iowa and New Hampshire yielded two final candidates in the form of the Republican President Trump running for a second term and former vice president Joe Biden who beat his progressive party mate Bernie Sanders to emerge as the top Democratic challenger.

An interesting feature of the 2020 campaign was that the major presidential candidates were male and senior citizens. Joe Biden’s choice of a woman, Kamala Harris as his vice president nominee, was a strategic move, which helped him win women and minority votes. In the months before the election, over 400 lawsuits were filed in 44 states, some of which were still before the courts when the polls opened on 3 November. These lawsuits increased hundredfold after the Republican campaign challenged the results of the election in many states demanding a halt to the counting of postal ballots after November 4, and a recount in many states, some of which was allowed by the courts. From May 2020 until the close of the poll, there were more than 12,000 protests against the political and criminal justice system. A majority of these protests were peaceful and called for racial justice and police reforms.

Voter Registration and Identification
Although the US public takes its voting right seriously and the constitution protects the political rights of citizens, an estimated 5.2 million citizens are disenfranchised due to criminal conviction, with many of them having already served their sentences. These restrictions disproportionately affect racial minorities. It is estimated that about 1.3 million African Americans are unable to vote as a result of these policies.

Voter identification requirements vary across the states. In 34 states voters are required to show identification before voting, with 18 of these requiring a photo ID. In 16 states, as well as in the District of Columbia, other identifying documents such as verification of signatures or showing personal information may be sufficient at the polling station. Absence of clear rules makes it hard to apply the same criteria for identification throughout all counties in all states. Where a voter’s address or identity cannot be established or where his name does not appear on the voter register, a provisional ballot can be issued at the polling station to enable a voter to cast the vote, subject to acceptance by the authorities at the counting stage. On 3 November a number of voters personally came to vote even after having cast their ballot by mail because they were unsure that it would be delivered to their respective county centre in time for counting.

Presidential Debate
For the November 2020 election, the outcome of the first presidential debate organised by the non-partisan Commission on Presidential Debates (CPD) became controversial after the event, with various stakeholders expressing dismay at the undignified tenor of the event. The two presidential candidates, especially the incumbent president, kept interrupting their opponent throughout the debate. This prevented them from addressing the key political and economic issues meant to inform the voters about key electoral promises and polices offered by each team.

The second debate was ultimately cancelled following President Trump’s Covid-19 infection and his surprisingly quick recovery, and also due to his refusal to participate in an online debate. His team also accused the CPD of bias and unacceptable aggressive style of the moderator at the first debate. Instead, two separate town hall debates, featuring each of the candidates were aired simultaneously, with the audience posing questions.

The third and final debate was conducted as initially planned. In response to the controversy arising from the first debate, the microphone of the opponents was muted during their opening positions on the agreed topics.

Vote Count
The Covid-19 pandemic exposed the weaknesses in the mechanism of the postal ballot, which envisaged delivering postal vote to the county offices on time to get counted immediately after the close of poll in the concerned state. A record number of postal votes, numbering around 27 million had not reached counting centres by the polling day. A majority of Democrats had preferred to vote ahead of the polling day resulting in extraordinary postal transactions and pressure on the postal service for timely delivery of postal ballots to the respective election offices. This also added to the workload of election staff deputed for vote counting and tabulation. . Where states made arrangements to provide alternative voting methods due to Covid-19, there were fewer problems.

Months before the election, President Trump had talked about voter fraud through the postal ballot; yet states did not make advance preparations to adequately deal with the expected large volume of postal ballot, nor took sufficient steps to assure the Republican campaign that President Trump’s concerns were unfounded or had been satisfactorily allayed. This allegation proved disastrous in setting the response of president Trump to accept the result of the election, which declared vice president Biden as the clear winner. During the period from 3 November 2020 to 20 January 2021, president Trump became more belligerent and agitated about what he called a stolen election. His 70 million supporters, including Republicans in the House and the Senate supported his defiant stance and refused to acknowledge Biden’s clear electoral victory until the unfortunate siege of the Capitol Hill a week before the inauguration which turned the table and paved the way for the smooth and a very different inauguration on 20 January 2021

Election Finance
Even by conservative estimates, this was the most expensive US election in the country’s history. It cost the country about 14 billion US Dollars. This is yet to be confirmed after all expenditure reports are submitted in the post election summing up. There was also an increase of 100% in campaign expenditure over the 2016 election. The US will need to place a cap on this this sharp rise in campaign expenditure in order to reduce the influence of the rich corporate donors on the elected representatives and imposing a moral dilemma on their independent judgement when making laws and national policies for the American people.

Role of the incumbent President
This report will be incomplete if it did not mention the way President Trump took these elections. From the very start he played the role of a spoiler in the game and continued to be a non player after the tabulation showed that he remained far short of the required 270 electoral college votes to win the second term. Even his many supporters, excluding the Republican hardliners, were shocked at his refusal to concede the election without a bitter legal fight. Some senior Republicans publicly expressed their frustration with this attitude advising President Trump to accept the defeat and exercise restraint. This had a positive impact to the extent that for a few days after 4 November, President Trump stopped writing his early morning Tweets claiming that he was the winner in the election. But he came back with more vengeance and venom finally resulting in a number of actions, which were unprecedented in the history of the US presidential elections. These included: dozens of recount requests in courts challenging the results in key battleground states, attempts to block the electoral college vote in Congress through objections raised on the floor of the Parliament by Republican Congressmen and Senators, inciting a public mob in Washington DC to stop the confirmation of the result of election by the joint session of the Congress, preventing the president-elect from receiving important transition briefings by the out-going president at the White House, an outright refusal to issue a conceding statement, and finally becoming he first president in Us history to boycott the inauguration of a president who defeated him in the ballot.

This did not go unnoticed by president Trump’s opponents from all parties and walks of life. Twitter and Facebook stopped president Trump from using their platforms to publicise his statements. The House proceeded to impeach president Trump for inciting his supporters to storm the Capitol Hill on the very day the Congress was meeting to confirm the result of the election. Ironically the House impeachment vote also included 10 Republicans voting in favour of impeachment. House and Senate Democrats also planned to impeach president Trump in the Senate after the inauguration in January as they held the majority in both Houses. In the week before the inauguration, a number of senior officials resigned in protest against president Trump’s role in the storming of the Capitol Hill. These included, Acting Homeland Security Secretary Chad Wolf, House Sergeant at Arms Paul Irving, Senate Sergeant at Arms Michael Stenger, Capitol Police Chief Steven Sund, Transportation Secretary Elaine Chao, Education Secretary Betsy DeVos, Chief of Staff of the First lady and former White House Press Secretary Stephanie Grisham, and Deputy Press Secretary Sarah Matthews. A number of world leaders expressed concern about the actions of president Trump in the events leading to the inauguration of the new president Joe Biden and vice president Kamala Harris. In the news, this US election became the most talked about event of the world after Covid-19.

It is customary that when an election is announced, the lame duck administration does not make any policy changes or takes action which may impact of the ability of the next administration to act independently. However, despite this established tradition President Trump went ahead with the appointment of a Judge of the Supreme Court to fill the vacancy created by the demise of the conservative Justice Ruth Bader Kingsburg. To fill in her vacancy, Amy Coney Barrett, was appointed to the US Supreme Court less than a month before the 3 November poll. Moreover, a week after the election, President Trump replaced three top Pentagon officials in the Department of Defence with persons who, according to news reports, were among his strong supporters in the first term. Before his departure president Trump also pardoned 73 persons and commuted the sentences of 74 others.

Violence
Concerns about post election violence or civil unrest were proved incorrect in the aftermath of the vote count, even through the announcement of results in some states was delayed and president Trump did not help things by unilaterally declaring his victory and casting doubts on the genuineness of the counted postal ballots. Credit for this goes to the American public for having faith in their system and to the election administrators in the marginal states who assured the people that they will not certify the results until each and every vote is counted. A majority of the leaders of the two main political parties called for unity and placed their full weight behind the electoral process to auto correct any mistakes. Vice president Joe Biden also delayed his victory speech until it was clear that he had comfortably crossed the required 270 mark in the polls.

Election Observation
The US is quite advanced in domestic election observation and has successfully shared its experience with nascent and emerging democracies around the world through USAID programmes. The US presidential election is monitored by thousands of local volunteers and observers in different states. Political parties also field official observers at polling stations to observe the transparency of the voting and counting process.

At this election, in addition to several hundred local organisations and grass roots election watch groups, a national, nonpartisan election protection coalition coordinated with more than 300 local, state and national partners and deployed 45,000 observers for the election. It also ran a 24/7 hotline operated by some 43,000 volunteers to provide election information to voters and answer their concerns and questions. Some organisations also conducted pre-poll surveys and provided nationwide legal support for disputes arising during the polls. National media houses also conducted pre-poll surveys and deployed reporters for election observation on the polling day.

Three international organisations, namely the OAS, OSCE and ODIHR deployed their observers for the November Elections. The OSCE deployed 52 observers, drawn from 39 participating states. It covered 30 states, as well as the District of Columbia. The ODHIR mission comprised 50 observers. The OAS sent 28 observers and experts drawn from 13 OAS countries. Their observers were present in four states and the District of Columbia.

The Commonwealth as a Brand
The Commonwealth name is not copyright protected worldwide but the Commonwealth of Nations as the successor organisation of the British Commonwealth which was founded in 1949 following post-World War II decolonisation remains a global brand, which represents the collective strength of its 53 diverse members. However, despite its many comparative advantages in democracy and development, which can stand out as models of international best practice, the Commonwealth has remained a modest and inward looking organisation. For instance its rich election observation work of over 40 years spreading over 40 countries with a record 160 election observations, is unparalleled in its peer election observation bodies, yet its collaboration with other democracy organisations outside its membership is quite limited. The Commonwealth has also not shown any keen interest to use its expertise to assist and promote democracy globally.

The Commonwealth can share its rich election observation experience with the Carter Centre, the National Democratic Institute, National Endowment for Democracy, Ford Foundation, Democracy International, the US Institute for Peace, and a host of other democracy organisations and even join hands with them in collectively observing elections abroad. This will, however, require Commonwealth Heads agreeing for the association to enter into partnership agreements with US institutions for collaboration on broader election observation and making its technical experts available for democracy promotion in fragile or conflict affected countries across the globe. This would benefit the Commonwealth more than its collaborating partners. While its partners would benefit from the Commonwealth’s access to governments and election observation bodies and expertise in democracy promotion activities, they can provide their resources and technical personnel to meet the demands of democracy promotion in conflict affected and democracy transition countries.

In order to reach this partnership, the Commonwealth will also need to shed off the fear of US institutions dominating the Commonwealth landscape. Due to its small budget and the majority of its members being small states or weak economies, the Commonwealth may fear that getting closer to the bear could end up in a fatal hug of the beast leaving it overpowered and unable to play the role of an equal stakeholder in such a partnership. However, the few but successful contacts established between the Commonwealth and the US democracy institutions in the past do not support this assumption. Moreover, the terms of the partnership can be written in such a way as to retain Commonwealth’s ability to act independently in all aspects of election observation, such as choosing election observers according to the established Commonwealth criteria, writing their terms of reference, deploying experts, and signing off observers’ reports. Partner organisations can be useful to the Commonwealth in the post election period when the important work of helping countries to implement the recommendations of the observer reports starts. Due to lack of resources most of the time the recommendations of observers are not followed up at all, and where these are pursued, they do not continue to be supported until the next election in the concerned country.

The Commonwealth is not financially well endowed to play a larger role globally, observing elections in non-member fragile democracies or focusing on the world’s large democracies to learn from their good practices, identify their institutional strengths and use these to enrich its own democracy work. The United States is a vast country and its quadrennial presidential election is like observing elections in 50 countries for choosing a common president and vice president, as well as electing their state and federal legislators and local representatives. But there are ways to go around this problem and make an opportunity out of a challenge in order to remain a world leader in the area of election observation, which the Commonwealth is eminently qualified to claim.

It is true that the Commonwealth does not have the budget to observe a US election even if an invitation was secured from the State Department for the Commonwealth to send observers. But it can collaborate with the Caricom or the OAS to jointly observe the US presidential election. It is interesting to note that thirteen of the 35 members of the OAS are Commonwealth countries. The OAS observer mission to the 2020 US presidential election included two observers from Canada and Trinidad and Tobago. The OSCE also joined hands with OHIDR in observing the November 3 election and issued a joint report of their observation. The pattern of international organisations joining hands for the common purpose for undertaking large and resource intensive projects is something the Commonwealth democracy programme should look into and integrate in its activity.

The Commonwealth election observation has sometimes been misunderstood as a one sided activity where the more experienced democracies in the membership happily monitor elections in the weak and fragile democracies in the organisation but without practicing reciprocity or issuing return invitations to them to observe their elections. This makes Australia, New Zealand, India, Canada, the UK and few other countries which do not invite the Commonwealth to observe their elections stand in one group, while a large number of African, Caribbean and Asian members in the other group which are always too eager to request the Commonwealth to observe their elections and issue a certificate of approval for their elections.

This divide strengthens the criticism of the Commonwealth as an association of un-equal countries, whatever the stated pronouncements. The stronger democracies in the Commonwealth have a lot to share with the fragile democracies of the fraternity in terms of good practice and how democracy theories and election laws are correctly interpreted and implemented on the ground. In non-election time, some of these countries do contribute to election observer missions or organise election-related workshops to share experience with the election management bodies of other member counties. In some countries annual platforms for this purpose have existed such as the democracy workshops of the Cambridge Centre for Science and Policy, but these can never be a substitute for the election officials of a third country observing a live election and seeing how local election offices are involved at grass roots level for managing an election, training election staff, improving postal and physical voting procedures, employing ITCs in the count and tabulation, and improving complaint processing mechanisms. This also gives the observers an opportunity to point out the inherent weakness of a mature democracy such as those witnessed in the US election lately and their reports could be helpful in improving processes and procedures for next election.

All this requires a rethink of the way the Commonwealth undertakes its election observation activity, how it collaborates with other outside institutions for effective partnerships and how it finances these activities for the Commonwealth’s own budget and from other externally funded resources. The Commonwealth should draw up a new comprehensive election observation strategy for Heads’ approval at the next CHOGM post Covid-19 to continue the good work it has been doing with greater efficiency and retaining its long-term leadership role in this area.

Recommendations
The US president and vice president are indirectly elected by an electoral college instead of the direct popular vote. Although the system is an essential feature of US federalism and has worked for over 140 years, it would be advisable for the Congress to review this arrangement and let the people directly elect their chief executive and his deputy through popular vote. This will also remove the present anomaly of a candidate receiving the popular vote but not becoming president because he fails to get the 270 votes from the Electoral College. This is an emotional issue for the US voters who may need a public debate on this change to reach a consensus on how to elect their president every four years. Opinion on this matter is already divided in the US without reaching a consensus.

In many states, ex-felons are not allowed to vote in an election. This disenfranchises the Afro-American, Latinos and other ethnic minority voters more, as a large number of ex-convicts who have served their time belong to these groups. At this election the state of California decided to give its ex-felons the right to vote which is a welcome start. Other states ought to follow California’s positive move to amend their electoral laws for the next election. Because the US constitution lays great emphasis on individual freedoms and importance of representative government, this restriction needs a review, where applicable, to make the voting exercise more inclusive and fair for all communities.

There is a need for states to review current procedures for postal ballots, taking into account the fact that in the future more voters may use the postal ballot or they may choose to vote online instead of physically visiting the election booths on the polling day. Over the past few elections, automation and smart IT equipment have been successfully integrated into the US election machinery. This experience can be used to improve the process through which the timelines for postal ballots are set up, and arrangement are made for their collection and delivery by US mail to the relevant counting centres. The aim of this review should be to finalise the results and tabulation within hours of the close of the polls instead of days, thereby making the process more credible, transparent and indisputable by the losing candidates.

Some states have installed automatic ballot reading machines. These cannot provide an audit trail in the event of a challenge made by a candidate. The physical hand count of the ballot papers in the state of Georgia in the aftermath of the 3 November election should be used as an example to minimise counting errors and create an audit trail to be randomly checked in the event of a challenge, instead of a recount of the votes in the entire county or state.

There are 18 states, which do not allow independent observers to have access to the polling stations, or their laws do not specifically provide for international observation. Although in the 2020 election this could be a valid reason due to Covid-19 concerns, the restriction does not sit well with the requirement of transparency and voter confidence. All states should enact legislation to open up polling places for voting, count and tabulation to local and international observers in addition to the party representatives currently permitted. The argument of space constraints does not hold ground because these are the same arguments cited by other democracy-deficit countries where the US has been advising election management bodies to be more transparent in the conduct of their polls and count.

The US Congress should consider making it illegal for the outgoing president to make senior level appointments to the Supreme Court and other government departments three months before the November election, including after the election day until the inauguration of the new president in January. If any appointments are unavoidable, these should lapse by the time a new president is sworn in and should be left with the new president to decide if he is happy for them to continue in the office. For example president Biden has asked Dr Fauchi to continue to head the Covid-19 response even though he served under president Trump. The proposed legislation would also need to restrict the power of the Senate to confirm any presidential nominations made during this period.

The Commonwealth Latimer House Principles on the separation of powers between the executive, legislative and judiciary are universally applicable to democracies, including the US. The power of the president to appoint his chosen judges at the US Supreme Court negates one of these principles if the party of the president has a majority in the senate, as was the case during 2016-2020. This has the potential of making the president commander of the armed forces under the constitution, as well as commander of justice. Such concentrated power was formerly associated with emperors and caliphs. In a representative democracy too much authority should not be vested in one person especially if he holds the nuclear codes.

There has been a lot of talk about the reform of the US electoral system in the area of disenfranchisement of ethnic minorities, gerrymandering and removing out-dated and contradictory regulations, expanding voter education and standardising electoral procedures across states. The US will do well to establish a super independent and neutral body under the constitution to resolve election related disputes. These reforms will improve the US democratic system, as well as enhance its image in other countries to promote representative democracy.

At this election, as in all previous US elections, the question of campaign financing raised questions. The difference this time was rise of many grassroots fundraising organisations in individual states which raised campaign funds not only for their favourite parties in the respective states but which also funded campaigns of their party’s candidates outside their states. After the political dust settles in the first 100 days, the US congress may consider creation of a bipartisan federal body to come up with uniform rules and procedures for all aspects of election related expenditure and implement these across all states. This body should be made fully empowered and responsible to enforce the rules governing federal campaigns and finance.

Conclusions

The 2020 US election was the largest electoral participation by the American people in choosing their political representatives freely without any violence or intimidation. There was no evidence of cyber manipulation of the votes, nor any clandestine interference in the election by another country. There were also no large scale voting or counting deficiencies or systemic wrongdoings. Although voters in some states received fake robotic text messages advising them no to go out to vote on 3 November but go the next day, a large number of voters ignored such fake messages in some states and went to their polling stations and voted freely. The polling staff in all the states, including the US postal service staff, did an excellent job of meeting the extra workload and discharged their duties responsibly and with diligence. Law enforcement agencies ensured the security and safety of the voting public, as well as polling staff. Political parties also behaved responsibly by following the due process in referring complaints and issues to the relevant election managers and their legal teams. Despite the drama and the negative images the world go to see in the aftermath of the election closer to the inauguration day, this was not a crazy and controversial election, the election process as a whole was robust and credible and the results reflected the will of the people. The response of the election management bodies was also positive and helpful in renewing the confidence of the American people in the ability of their time tested electoral system to address the problems effectively and reach a satisfactory resolution. As stated by former president Obama after the Biden inauguration: “The American people are strong. There is no problem they can solve by working together.” The US democracy has both the resilience and resources to implement the lessons learnt at this election to strengthen its electoral processes for the future.

The author is a former Pakistan diplomat and served a Special Adviser at the Political Affairs Division, Commonwealth Secretariat, London. he has observed elections in over a dozen Commonwealth countries.