The ballot box is not a court

An election can put a man in parliament. It cannot put him above the law. That simple truth is easy to state and hard to keep. It is hardest to keep when the man is popular, when his followers are loud and when the charge against him can be made to look like a plot.

The modern politician has learnt the trick. He does not say: “I should not be judged.” He says: “Let the people judge me.” That sounds noble. Often it is not. It can mean: let the vote wash away the facts.

Nigel Farage’s recent resignation as MP for Clacton, and his decision to stand again, should be seen in that light.

He faces scrutiny over alleged undeclared gifts, donations or financial support. He denies wrongdoing.

The issue is not whether voters in Clacton may return him. Of course they may. They may vote for him once, twice, or 10 times. Nor is the issue whether he is guilty of breaking any rule. That must be proved, not guessed. The issue is narrower and more serious.

Can a politician meet a standards process by calling an election? Can he answer a question about disclosure by saying that people still support him? Can a seat won at the polls count as an answer to a charge that rules were broken? It cannot.

There is an old British case which gives the point in plain terms. In the so-called Fleet Street Casuals case, Lord Diplock drew a line that every democracy should remember. Parliament may judge whether public power has been used wisely, well, or efficiently. Courts decide whether it has been used lawfully.

The same idea applies to parliament’s own rules. Voters choose their MPs. They do not decide whether a form should have been filed, whether a gift should have been declared, or whether a rule has been broken. Those questions need evidence. They need dates, documents and reasons. A ballot paper cannot do that work.

This is not a slight on voters. It is a defence of them. A voter is asked many things at once. Who should speak for the town? Which party should govern? Which voice best reflects anger, hope, fear, or trust? A voter is not sitting as a judge. He has no witnesses before him and no evidence. He cannot test accounts. He cannot give a reasoned ruling.

A parliamentary seat is not an acquittal- Omar Grech

So, when a politician says, “The people will decide” we must ask: Decide what? They can decide whether to elect him. They cannot decide whether he complied with the law. They can forgive him. They cannot make the rule disappear. They can cheer him. They cannot turn a breach into obedience.

This is the heart of the populist trick. It treats support as a cure for scrutiny. It turns every inquiry into an attack by the elite. It turns every rule into a trap. It turns every question into proof of bias. Then it asks the crowd to end the matter. We should not accept this.

The rule of law means little if it binds only the weak, the quiet and the disliked. It must also bind the man who fills halls, wins seats and frightens his opponents. Indeed, it matters most then. Laws are not tested when no one objects to them. They are tested when a popular man says they should not apply to him.

This danger is not British only. It appears wherever election victories are used to close files, silence questions, or treat scrutiny as an insult to the people. Malta has seen this habit too. But winning an election does not clean a contract, cure a conflict of interest, answer a journalist, silence a court, or close a file.

Democracy is not one act. It is not only the vote. It is the vote, plus law, plus scrutiny, plus independent institutions. There is a harsh image in the gospel story. The people chose Barabbas. That is not an argument against elections. It is a warning against worshipping the crowd.

A crowd can be right. It can also be wrong. It can be moved by pity, anger, loyalty, fear, or lies. Its voice matters. It is not the same as justice.

Orwell warned against words that hide facts. In this debate, the phrase to distrust is “democratic mandate” when it means “stop asking questions”. A mandate is not a pardon. A parliamentary seat is not an acquittal. A majority does not make an unlawful act lawful.

If Farage is returned by Clacton, he will have won an election. He will not have answered every question. If the allegations are false, the proper process should say so. If rules were broken, the proper process should say so too.

That is not anti-democratic. It is democracy kept honest. The ballot box gives power. It does not give immunity.

Omar Grech is associate professor of international law at the University of Malta.