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Editorial — Rethinking the
ECP overview The
other half Absolute
minority problemareas Redefining
the ECP role
Editorial — Rethinking the ECP It might seem strange why TNS wants to focus on the
process when a larger than life incident confronts the country. Why a
Special Report on an independent election commission at a time when the
sovereignty of the country has been violated, yet another time. Truth is
that we in TNS thought we could not, at this point, add anything to the
unanimity of views being displayed on the streets and on television screens
(Pakistan is quite incident prone anyway). So, without taking anything away from the seriousness of
the ‘incident’, we decided to stick to the original plan. Why does every
political opponent deem it fit to declare every other day there cannot be
free and fair election in this country under President Asif Ali Zardari?
What has the president got to do with an election when there is — or ought
to be — an independent election commission. And what does it take for an
election commission to become independent. Is it the constitutionally laid
down powers or is it the person of the chief election commissioner. Is it
the financial autonomy or is it the appointing authority that makes it
independent. We understand there is a reform plan underway and some
reforms have already been effected under the Eighteenth and Nineteenth
Amendments. The ECP too has come up with a strategic five year plan with 15
broad electoral reforms. These are critical areas so right now it wants the
parliament to take up the reform bill soon. This we believe is a step in the right direction and one
that needs to be highlighted in the media to make the election process more
meaningful. Instead of dwelling endlessly on the issue of fake degrees as it
did, it must focus on enhancing the independence of election commission. In
this Special Report we have focused more on the declaration of assets, an
issue vociferously taken up by Imran Khan’s PTI, than the election
spending issue. In both cases, it turns out, the election commission has
no powers. If that is true and the ECP’s role is nothing beyond holding
election then there has to be some mechanism, some institution, that takes
the declarations further to see if they are fabricated or not. In that
sense, that is a collective institutional failure and the ECP alone can’t
be held responsible. But regarding the spending on elections, the ECP has to
play an active role and should have the powers to do so. Another area where we fear no reform would be effective
is that of constituency delimitation which is far from perfect. There are
too many areas where immediate reform is required such as barring the
womenfolk from voting in elections and integrating the minorities into the
mainstream electorate. We have touched only a few of these. Because we want
to engage with the process and not the incident.
overview During the run-up to each
general election one of the issues hotly debated is the need for a truly
independent election commission as a prerequisite to the holding of fair
elections. Much will again be said on this subject in the coming months.
Fortunately, this time around, the chances of meeting the decades-old demand
are somewhat bright. For an election commission
to be considered independent it must meet a universally recognised
five-point criteria: n that the commission
should consist of several whole-time members with reasonably long tenures; n that the power to
appoint the head of the commission and other members should not vest in the
state’s chief executive alone; n that the commission
should be an autonomous body in both administrative and financial matters; n that the executive
should have no veto power in the selection of a commission’s staff
(including the key functionary, the commission’s secretary); and n that the Chief Election
Commissioner and other members of the commission should have the ability and
the courage to hold free and fair elections regardless of the wishes and
whims of the government. The first condition has
been met. Pakistan now has a multi-member permanent commission, comprising
Chief Election Commissioner (CEC) and four members of the Election
Commission — all of them retired high court judges, one from each
province. The 18th Amendment has raised the CEC’s tenure from three to
five years, which should help him to discharge his functions better. The second condition,
regarding the manner of appointment of the CEC and members of the
commission, also has been met in principle. Under the 18th Amendment these
appointments will be made on the recommendations of a parliamentary
committee. This provision will come into force on the expiry of the present
CEC’s term, which happens to be due in March 2012. Public trust in the
Election Commission would be considerably strengthened if the parliamentary
committee, which has already been formed, decided to begin the process of
selecting a new CEC early in the new year. Unfortunately, the
government has chosen to cause an unnecessary controversy by suggesting a
two-year term for a member of the commission. This is quite unwise and the
sooner it is decided to allow the commission members a five-year term the
better for all concerned it will be. Two years is too short a period for a
commission member to be able to do his job properly. This, because the work
of the election commission is not entirely of a judicial or quasi-judicial
nature, an area in which all judges are presumed to be competent; it has
also to deal with many political matters that do not always lie in judicial
authority’s domain. The commission members’ performance will
considerably depend on the length of their tenure. While on this subject one
may regret the fact that the authors of the 18th Amendment did not realise
the need for bringing into the election watchdog body experts from outside
the judicial ranks. A number of factors have persuaded the people to grow
out of the habit of putting the entire burden of electoral matters on the
judiciary’s shoulders. There is no reason why experts on election in the
academia or public life cannot be selected as members of the election
commission, as the CEC even. That may also clear the way for females to be
named on the commission, something that is necessary to enable it to view
matters from a women’s perspective, to address their legitimate concerns.
And one should like to hope that some day a non-Muslim citizen too will be
considered worthy of joining the election commission. As regards autonomy, the
position is not clear. The constitution (Article 220) requires all executive
authorities in the federation and in the provinces to assist the election
commission and this provision can be used by the commission to assert its
autonomy in both administrative and financial matters. But it will be
appropriate to reduce the Finance Ministry’s power to interfere with
allocation of financial resources to the commission. The latest demand by
the election commission for equivalence in financial matters with the
Supreme Court and the houses of parliament is unexceptionable and must be
conceded forthwith. The position is slightly
clearer in regard to the fourth condition, namely the selection of
commission’s “officers and servants” (Article 221 of the
constitution). In the absence of legislation by the parliament, the CEC has
the power to make rules for the appointment of the staff, subject to the
President’s approval, and also the power, one presumes, to enforce those
rules. However, there is a need to take the appointment of the Secretary out
of the executive’s jurisdiction and entrust it to an independent
institution, because more often than not the election commissions have been
managed largely by their Secretaries. That last condition,
namely, the ability of the election commission to decide all matters
pertaining to an election, once the poll date is fixed by the head of state,
has rarely been fulfilled in Pakistan. And, unless this condition is met the
public will neither acknowledge the election commission as an independent
body nor accept an election conducted by it as fair. According to the
stories one picks up in the corridors of the election authority, elections
are usually held in accordance with the wishes of the powers that be.
Pakistan needs strong persons of integrity to defy any executive authority
or other manipulators of the electoral process. The shortcomings of the
election commission noted in the past include its inability to enforce its
own code of ethics, even to the extent its counterparts in Bangladesh and
Sri Lanka have sometimes done (though there have been serious complaints
against both in the recent past). The failure of the
election commission to enforce the provisions of the Penal Code relating to
electoral malpractices is nothing short of a scandal. Section 171-B declares
bribing (purchase) of voters a criminal act, prohibits the use of undue
influence and the other sections lay down punishment for illegal payments or
failure to keep account of election expenses. One of the offences is
defined as inducing or attempting “to induce a candidate or voter to
believe that he or any person in whom he is interested will become or will
be rendered an object of Divine displeasure or of spiritual censure”. Have
these provisions of the PPC ever been honoured? Even in the absence of
specific complaints the commission need not have been as helpless as it has
proved to be. There are quite a few
other matters that undermine confidence in the election commission’s
independence. At the top of the list is its failure to countermand election
in any constituency, indeed in the whole country, if women are prevented
from casting votes. The commission knows that this pernicious practice is
quite common and yet it has consistently shied away from using its authority
to stamp it out. Similarly unacceptable is the failure to fully implement
the joint electorate system; the Ahmedis are still denied enrolment on the
common list, and there are complaints of non-Muslim voters not being
registered in sequence with their Muslim neighbours In short, an election
commission does not become independent by merely being labelled as such. The
title has to be earned by displaying the kind of dynamism and freedom of
action exhibited while crying foul over bogus voters’ lists or while
refusing aid negotiated over and above the head of the commission. But such
bold actions only confirm the view that given the will and a modicum of
integrity the rise of the election commission as the defender of fairness in
the choice of people’s representatives is not impossible. Mission reforms General Pervez Musharraf’s
eight-year tenure damaged the already limited independence, impartiality and
competence of the Election Commission of Pakistan (ECP). The Legal Framework Order
(LFO), which became part of the 1973 constitution under the 17th Amendment,
distorted the country’s political system as well as the Election
Commission. The 18th and 19th
Amendments enhanced the independence of the ECP by making appointments of
its key officials more transparent, whereby the chief election commissioner
is appointed by the prime minister in consultation with the leader of the
opposition in the National Assembly. A joint parliamentary committee that
must comprise equal number of government and opposition members must approve
these appointments. It is a good start to a
long process of electoral reforms. International Crisis
Group’s report, ‘Reforming Pakistan’s Electoral System’, published
in March 2011, states that electoral reforms on all fronts in Pakistan is
urgently needed. The report further reads,
“Highly inaccurate voters’ lists are responsible for disenfranchising
millions. Polling procedures are often manipulated; accountability
mechanisms for candidates and political parties seldom employed; and the
electoral code of conduct routinely flouted. Dysfunctional election
tribunals, characterised by corruption and prolonged delays, prove incapable
of resolving post-election disputes. Such internal weaknesses constrain the
ECP from overseeing credible elections and an orderly political
transition.” The present management of
the ECP is well aware of the situation and has taken some steps to address
these problems. It has held meetings with different stakeholders for over
six months and in May 2010 came up with a strategic five-year plan, listing
15 broad electoral reform goals, divided into 129 detailed objectives with
specific timeframes. These reforms included crucial areas such as
significantly enhancing the capacity of the electoral institution and
ensuring the participation of all voters through an improved electoral roll
and better public information. Out of the 129 objectives,
18 objectives were to be achieved by September 2010 and a total of 43 before
the end of 2010. But many of them have not been achieved yet. The ECP
officials hold the parliament responsible for the delay to a large extent.
“We have been trying to introduce a more transparent election system.
There are some flaws in the current laws and we need parliament to pass an
amendment bill. We have been working on it, and hopefully it will be
submitted to the prime minister in the next two months. We are trying to
achieve complete financial autonomy like Supreme Court of Pakistan.” He hopes the parliament
will soon pass all major reforms envisaged in the five-year Strategic Plan
before the next general election. The official says that the
Commission is pondering on introducing electronic voting machine. “The ECP
intends to use electronic voting in at least some districts in the next
elections. The proposed law reforms emphasise on making the process of
scrutiny of assets of parliamentarians more meaningful. We are going to
propose the establishment of an assets monitoring wing with more powers,”
he says, adding that “everything depends on how the parliament responds to
our recommendations.” — Aoun Sahi
The
other half A detailed scrutiny of
voting patterns recorded during the general election of 2008 suggests that
the barring of women from voting has spread across Pakistan in pockets of
population in urban as well as rural areas, including major urban centres. Of around 65,000 polling
stations set up during the 2008 general election, 13,078 were exclusively
for women — 8,418 in Punjab, 2,257in Sindh, 1,539 in KP, 648 in
Balochistan, 144 in ICT and 72 in FATA. In 564 — or 4.3 percent
— of the female polling stations, the turnout was 0 percent, according to
a polling station-wise voting data provided by the Election Commission of
Pakistan. Of these 564 polling stations, 84.75 percent were in KP, 5.49
percent in Punjab, 4.07 percent in FATA, 3.54 percent in Balochistan, 1.95
percent in Sindh and 0.17 percent in ICT. With 166, 82, 70 and 50 polling
stations, Swat, Charsadda, Swabi and Peshawar respectively stood out as
districts with maximum number of polling stations where no female voter was
seen. All these districts are in KP. In 157 of the 13,078
female polling stations, the turnout ranged between 1-5 percent. A majority
of these polling stations were in KP (63), followed by Balochistan (48),
Sindh (20), FATA (14) and Punjab (12). Quetta had the maximum number of
polling stations where the turnout ranged between 1-5 percent at 40 polling
stations. Overall, 541 (or 75
percent) of the 721 polling stations with low female turnout (between 0-5
percent) were in KP. Four of the top five districts with maximum number of
such polling stations were also in KP — Swat (181), Charsadda (88), Swabi
(71) and Peshawar (66). In this context, Balochistan’s Quetta district
followed with a total of 42 polling stations with low female turnout.
Absolute
minority The role of minorities in
Pakistan’s electoral process has always changed from time to time. With
the growing intolerance in the society, non-Muslims make up less than four
percent of Pakistan’s 180 million (approx.) population. These minorities
are Christians, Hindus, Parsis, Sikhs, Behais and scheduled castes. These
are distinct religious groups recognised as such since the British period. Later, in 1974, Pakistan
declared another religious minority called Ahmadis through a constitutional
amendment. Article 25 of the
Constitution of Islamic Republic of Pakistan speaks about the equality of
all the citizens whereas Article 36 provides for the promotion and
protection of political rights. Nevertheless, under Article 41.2, certain
minority groups are not allowed to hold certain public offices such as those
of the president, the prime minister and provincial governors, which is a
clear case of discrimination. The narrative of
constitutional and legal discrimination in the name of religion continues
into Articles 2(A) and (B) and Article 41 which render the minorities as
less preferred citizens. A few years ago, the
separate electorate system was in practice for the minorities, which barred
them from entering the mainstream politics. Under the recent system of
proportionate election, 10 reserved seats are distributed among the
political parties which nominate the minority members of their own choice. “The overall environment
of the country is not conducive for the minorities, let alone the
constitutional/legal factor,” says Samson Salamat, Director, Centre for
Human Rights Education, an NGO. “However,” he adds,
“we would like to appreciate the token steps taken by the present
democratic government to increase the political participation of minorities
in Pakistan.” Religions minorities have
frequently complained about the manipulation of records and registration of
voters and the holding back of National Identity Cards by the employees or
power brokers. In the past, the voters’ lists were segregated on the basis
of religion which made it difficult for the voters to identify the right
polling stations and exercise their right. In the local bodies’
election of 2005, the issue of political isolation was resolved for the
voters; however, the seats in the Union, Tehsil and District councils were
still reserved on the basis of religion. Non-Muslim councilors were ignored
in the formation of sub-committees. Samson urges the
government and the ECP to conduct an impartial and independent research with
the help of international experts to determine the socio-political reasons
of insufficient participation of minorities in the politics of the country.
“The social segregation of religious minorities has been the chief reason
for their low participation in electoral processes… Lack of awareness on
the part of the community also needs to be dealt with by having special
awareness campaigns for religious minorities,” he says. Ahmadis are the most
disadvantaged. The voters’ lists of the community people were separated in
the last general election. As a protest, they have always boycotted
elections. Appropriate measures need
to be taken for the true representation of the minorities because
“selection on minority seats” is not a healthy norm and is against the
spirit of joint electorates. Besides, says Samson, it is also against the
spirit of modern liberal democracy and a representative democracy. vaqargillani@gmail.com
problemareas The last full-scale
delimitation for national and provincial assembly constituencies in the
country was done before the 2002 general election under the Musharraf
regime. The Election Commission of Pakistan (ECP) received 945 complaints
about the delimitation of constituencies before the election. It was mainly
because agencies like the National Reconstruction Bureau (NRB) had played a
vital role in gerrymandering districts to create a support base for pro-Musharraf
political parties and personalities. The last population
census, held in 1998, served as the basis for this demarcation of
constituencies, although a new census should have been held in 2008, it has
not been completed yet and, according to an ECP official, the election
authorities cannot carry out a fresh delimitation exercise. “Constitutionally, the
ECP is bound to revisit constituencies’ limits after every census. So far,
it seems we shall have to hold the next elections on the basis of the 1998
census as the Pakistan Census Organistaion (PCO) has only carried out
household counting and not started head-counting yet,” the official tells
TNS, requesting anonymity. He further says that
nearly all political parties are “happy with the situation. So far, the
PML-N and the Jamaat-i-Islami have written letters to the ECP asking it not
to disturb the present size of constituencies.” The Delimitation of
Constituencies Act 1974 — the law that governs this process — clearly
states that all constituencies shall, as far as practicable, be delimited
with regard to the distribution of population in geographically compact
areas, existing boundaries of administrative units, facilities of
communication and public convenience and other cognate factors to ensure
homogeneity in the creation of the constituencies. By law, the Election
Commission of Pakistan (ECP) must also ensure that all constituencies “as
far as may be possible… shall be equal among themselves in population.”
However, on ground there is extensive variation of size and population
between the Federally Administrated Tribal Areas (FATA) and other
constituencies in the country and also among the National Assembly
constituencies in all other provinces. There are some constituencies that
stretch over an area of 700 kilometres and others on merely a few kilometres.
The number of registered voters in, for instance, NA-266 Nasirabad/Jacobabad
is 651,356 which is in sharp contrast to NA-38, Tribal Area III’s 87,933. Experts believe that
periodic changes to the boundaries of constituencies are necessary in every
democracy. “Without these changes, the number of citizens within each
constituency will become increasingly inconsistent,” says Mudassar Rizvi,
country coordinator of Free and Fair Election Network (Fafen), an NGO
working on the promotion of transparent election process in Pakistan. “In
turn, the adjustment of these boundaries can have a significant influence on
the outcome of elections and, thus, political decisions that are made
between these events. Despite such consequences, the importance of boundary
delimitation is often under-emphasised.” He argues that in order to
ensure greater consistency with the best international practices, these
constituencies should not ordinarily vary by more than 10 percent across a
province or territory. “In an exceptional case, the ECP should be bound by
law to publish its reasoning on its website. New legislation should be made
to design constituencies on the basis of voter lists instead of population
data [census].” However, according to an
ECP official, political parties are the main hurdle in the process of a
fresh delimitation of constituencies. “Political parties are never
satisfied with the delimitation of constituencies,” he tells TNS. “They
always want to redesign constituencies to neutralise the support base of
other political parties. You will be surprised to know that in Karachi there
is not a single constituency where Urdu speaking (Mohajar) population is
more than 60 percent of total population although there should be at least
four constituencies where their population should be more than 80 percent
but the MQM has managed to divide their support base in all different
constituencies in order to get maximum seats in the city. Now the ECP has
planned to introduce GIS system along with the traditional system to demark
constituencies. “This time, public
hearings will also be held not only to inform stakeholders about the
delimitation process but also to get to know their concerns or opinions
regarding the redrawing of boundaries. Courts are also independent and if
someone is not happy with the process he/she can also go to court.” The process can only be
started once the results of the census, which hopefully will be furnished by
the end of next year, are provided to the ECP. “To delimit constituencies
on the basis of voter lists instead of census data, we need parliament to
amend the present rules and regulations. I do not think they are going to do
it as all of them have benefitted from the present process. You need to
understand that census data is not verified and it is easy for people to
manipulate it while votes are registered on the basis of documents (now
according to NADRA data) and it is impossible to manipulate it,” Rizvi
explains. The Pakistan Census
Organisation (PCO) has so far conducted house-counting and the data
indicates a lot of variations in different areas of country. According to
details, the census blocks (a census block consists of around 250 houses) in
Pakistan have increased to 139,872 in 2011 from 1998’s 102,295, witnessing
a 37 percent increase. Interestingly, Sindh has
witnessed the maximum — 67 percent — increase. FATA is on the second
position with 48 percent increase. The most revealing data is about the
increase in census blocks in the cities. Hyderabad and Karachi, both
strongholds of MQM, have seen an unprecedented rise in census blocks with 91
and 81 percent respectively while Lahore, with only 26 percent increase in
census blocks, is at number 8 among the top ten cities of the country. “If we follow the
current formula, the National Assembly seats of Sindh, especially the urban
areas of the province, will increase by a good number while all political
parties have regularly expressed their concern over delimitation of Karachi
constituencies that favour MQM candidates. I want to let you know that the
maximum number of unverified votes has also been identified in Sindh
province,” says another official of the ECP. Renowned political
scientist Dr Muhammad Waseem believes that all major political parties in
Pakistan, except perhaps Tehreek-e-Insaf, do not want to disturb the present
delimitation of constituencies. “They all have their geographical
territorial stakes and do not want to disturb them at least before the next
general election. Fresh delimitations render areas and constituencies
unpredictable. For example, in Karachi, the MQM which has a support base
only in the Urdu-speaking community, around 49 percent of the total
population of the city manages to win 18 out of 20 seats,” he says. Election omission The EC can collect asset
details but lacks the power to probe them By Shahzada Irfan Ahmed Pakistan Tehreek i Insaf (PTI)
Chairman Imran Khan’s call to politicians to declare their assets has been
received ‘variously’. While there has been public support for this
demand, Imran’s opponents say he should know that the parliamentarians
have already made this declaration. His opponents call PTI
chairman naďve for missing the point. But his supporters insist this is not
the case and that Imran means “accurate declaration” when he talks about
the assets. The question that arises
is whether the Election Commission of Pakistan which collects assets details
from members verifies the accuracy of their claims or not, and whether there
is any mechanism in place to effectively probe and punish those making false
claims. Intazar Mahdi, a Lahore
based lawyer, tells TNS that Section 42 (A) of The Representation of The
People Act requires all elected members to submit statements of assets and
liabilities of their own, their spouses and dependents annually to the
Election Commission by a specific date. The Commission can notify
the names of the members who fail to file statements of assets and
liabilities within the period specified, he says, adding that these members
shall cease to function under an order till such statement is submitted. According to Mahdi, the
law also prescribes punishment to those whose statements are found to be
false. These culprits may be proceeded against under section 82 of the Act. The abovementioned section
states that any person guilty of a corrupt practice shall be punishable with
imprisonment for a term which may extend to three years, or with fine which
may extend to five thousand rupees, or with both. This clause, as per Ahmed
Bilal Mehboob, Executive Director, Pakistan Institute for Legislative
Development and Transparency (PILDAT), “has not been challenged by people
in the past.” However, he says, former
prime minister Benazir Bhutto was disqualified under this law on charges of
not declaring her assets in Switzerland. “The State itself challenged her
membership.” Bilal adds that it is very
difficult for a common man to have access to these details as the Election
Commission sends them for notification in the official gazette which is
printed in Karachi. Besides, the process to get copies is quite complicated.
He says he has made a
demand to the Commission to put up details of the assets on its website so
that the media, the civil society and individuals can know about everything.
“Once this happens and the people become aware of the law, it’s likely
that they will start challenging suspicious asset declarations.” Former secretary election
commissioner Kunwar Dilshad confirms that all the commission can do is to
collect asset declarations from each and every member, which is a tough
task. The Commission does not have the powers to probe them, he says. Dishad says that ordinary
citizens, civil society organisations and political parties who are not
satisfied with assets details of a member can challenge such declarations in
the court of concerned District and Sessions Judge. The court can decide the
matter and the details available with the Commission form part of the court
records. Hafiz Muhammad Yousaf,
Vice President (North), Institute of Chartered Accountants of Pakistan (ICAP),
believes that assets declaration by politicians is a myth that should be
busted. There should be other requirements which may be included in the
election commission rules to make it more effective and result-oriented. For example, he says a
member should be asked to furnish his expenditure details and asked about
the source of funding. If a member travels abroad frequently, lives in a
furnished bungalow, travels in luxury cars and declares relatively low-value
assets he should be questioned. According to Yousaf, the
Internal Revenue Service (IRS) in the US asks suspected tax evaders about
the source of funding in case their personal wealth and income do not
correspond to the amount they spend on themselves. In any case they have to
declare from where the differential amount is generated and pay the penalty
for hiding these details. Yousaf adds that assets
declaration exercise in the existing form is hardly of any use. What he
suggests is that the parliamentarians should also be asked about the
transfers/disposals they made over the last five years or so. If a
politician transfers property worth millions of rupees to his son before
contesting an election, he should be asked to mention that in documents
submitted to the election commission. Suggestions coming from
the ICAP vice president seem highly relevant keeping in view what happens in
our country. One may recall the statement made by the spokesman of a
political party leader that his (leader’s) daily expenditure is Rs 3.5
million. This politician pays Rs 5,000 under income tax in a year. Sudden transfer of assets
to relatives before contesting elections hints at the criminal intent of a
person’s mind, says Mahdi while trying to draw a parallel with the
criminal law of the state. Mahdi says that hardened
criminals transfer their property to immediate relatives before committing
heinous crimes like murder and then disappearing. He says the law empowers
the state to confiscate the property of a proclaimed offender. In order to
offset this, they transfer it to someone else before committing a major
criminal act. Frustrated by such moves,
the police often burn standing crops and structures built on proclaimed
offenders’ properties, transferred to their relatives with the
above-mentioned objective in mind. The Election Commission
laws must also pre-empt all moves made by politicians with the intention to
dodge organs of state, Mahdi suggests.
Redefining
the ECP role Around the globe the
fairness of a country’s elections is measured against three primary
benchmarks. Initially, electoral processes are considered to determine if
they have been implemented in a manner that’s consistent with a state’s
election law. In turn, the law’s consistency is evaluated in the light of
best practices in election administration to see if it meets a country’s
international and global obligations. The election-related
constitutional reforms in the Eighteenth Amendment provide good protection
to an independent Election Commission, neutral caretaker government and
uniform election administration for national, provincial and local
government elections. However, there is still a
need to provide constitutional protection to some other aspects of elections
as well. Following the
constitutional reforms, the real challenge ahead is the reforms in
election-related legal framework. The parliament and its committees, the ECP,
political parties and civil society need to focus their efforts on shaping
the electoral reforms legislation in order to improve the quality of
elections in the country. Such efforts are also required to make the
legislation consistent with the changes in constitution, internationally
acknowledged best practices and global obligations. At present, eight laws
govern elections in Pakistan. These fragmented and inaccessible laws need to
be merged into a single law with appropriate amendments. The new legislation or
amendments to the existing laws should focus on all aspects of elections —
from the code of conduct, electoral management, boundary delimitation, voter
education, nominations, political finance, voter registration and voting
processes to dispute resolution and observation of elections. But among all
these factors, the most crucial and important is electoral management since
it deals with impartiality and independence of election arbiters. The impartiality of the
institution responsible for conducting elections is an essential component
that ensures success. While the structures of election commissions vary from
country to country, commissions considered most successful demonstrate both
a ‘perceived’ and a ‘real’ tradition of impartiality at all levels
of the organisation. Without a foundation of
impartiality and the election administrators being genuinely regarded as
fair arbiters, neither the voters nor the candidates can be fully certain
that the ‘rules of the game’ have been followed and that the candidates
selected by the people have won an election after all the ballots have been
counted. All stakeholders in the
election process in Pakistan agree that the system under which the ECP
members and officials are appointed and operate requires further reforms to
ensure genuine independence. For instance, the term of members of the
Election Commission should be set for five years, equaling that of Chief
Election Commissioner. Election Commission’s
control over rules and regulations is another crucial factor that legal
reforms should concentrate on. Legislation drives electoral process,
offering a basic framework for how polls should be conducted. In turn, rules
and regulations provide essential details that are not suitably contained
within the law. They ensure that those conducting the elections are better
able to respect the principles within the law while outlining clearly for
all stakeholders what they can expect over the course of an election cycle. As it currently stands,
legislation fails to provide the ECP with the independent authority needed
to establish election rules and regulations. With the ECP having to
seek approvals from the president or the federal government for making
election rules and regulations, the existing provisions do not meet the
benchmarks established for international best practices. The law needs to be
changed to ensure that the Election Commission wields the authority to
formulate election-related rules and regulations that allow it to carry out
the dictates of election law. To make the ECP
meaningfully empowered and independent, it should also have control over
election budget and its institutional structure. Granting budgetary control
to the Election Commission is imperative to reinforcing its impartiality. In the year 2000, the
federal government gave the CEC powers to manage its own budget through a
notification. The authority includes spending without limit,
re-appropriating funds from one head to another, changing the nomenclature
of any post in the Election Commission and upgrading or downgrading any
post. This notification can be
withdrawn by the government at any time, leading to circumstances under
which the Executive ultimately has control over the ECP’s budgetary
arrangement. The current arrangement is unacceptable as it undermines the
independence of the Election Commission; therefore, it is necessary that
financial autonomy to the ECP be granted in law including the authority over
approval of its budget, the maintenance of accounts, the creation of posts,
and authority over supplementary grants. The Election
Commission’s independence as an institution can be further enhanced by
reassessing the control it has over individuals appointed to organise and
implement the components of an election. Current legislation obfuscates this
authority by establishing that the ECP must appoint its District Returning
Officers (DROs) and Returning Officers (ROs) from among officers of agencies
and corporation of the Federal and Provincial governments. In fact, this
practice runs contrary to current international obligations for elections in
that it fails to offer all citizens the opportunity to participate in public
affairs. The practice of involving
the judiciary in election administration also creates an imbalance in the
system. While members of the judiciary are respected within the community,
their participation in administering elections leads to a conflict of
interest in circumstances where judiciary is called upon to mediate election
disputes. To correct the current
imbalance, the ECP should be given the authority to appoint both DROs and
ROs from among all citizens, not only from among those engaged by federal or
provincial entities. The law should establish the Election Commission’s
power, both to recruit and to dismiss temporary staff on terms and
conditions to be determined by the commission and as deemed necessary by it
for the purpose of conducting elections. While this should not
exclude the participation of government officials, the ECP’s authority to
“deputise” so as to direct, sanction and remove members of the civil
service seconded to assist in the conduct of elections should be
strengthened in a manner that reinforces its impartiality in elections. Further, the law should
state that serving judges of the superior and subordinate judiciary can no
longer be appointed to the positions of DROs and ROs so as to avoid any
conflict of interest that may arise. Authority over government
entities is another integral pillar of an election commission. The
independence of such commission is reinforced when it has the capacity to
control all the constituent parts of an election and all actions that are
taken as the election unfolds. To achieve this goal, the ECP requires a
clear legislative mandate which ensures that government entities, including
government agencies and security forces, do not interfere with electoral
processes for the purpose of party control or for personal interests and
that they would act only in a manner prescribed by the ECP. If government
entities interfere inappropriately, the ECP should have the authority to
initiate legal and/or disciplinary proceedings against any government
official involved. Recent electoral processes have shown that government
entities continue to intervene in Pakistan’s electoral processes. While Election
Commission’s impartiality is essential to the success of an electoral
process, the commission must also be accountable to other election
stakeholders and institutions. In the same way that the Election Commission
requires the authority to ensure other election stakeholders are following
election rules, the activities of the Election Commission must be held to
account. Parties, candidates and
citizens who cast their ballots and media must all be given full opportunity
to evaluate an election commission’s activities. Two additional measures
within the election legislation would reinforce this goal. First, it should
be established in law that, subject to reasonable restrictions, the ECP must
allow public access to its records, meetings and allow for public
consultation in decision-making process. Second, law should establish that
the ECP must issue regular reports to the Parliament annually and following
each election.
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