The Road to a stable Democracy in Pakistan
“Fundamental problems remain with the legal framework and the implementation of certain provisions, leaving future processes vulnerable to malpractice and Pakistan not fully meeting its obligations to provide citizens the right and opportunity to stand as candidates and to vote.”
(General Elections 2013 Report: The European Union Election Observer Mission)
Elections reflect the will of the people. Holding free and fair elections at regular intervals is the most important feature of a democratic polity because only such an election can guarantee a stable and an effective political system. The legal framework and administrative processes for elections always need to be seen as organic; requiring regular review and modifications. In Pakistan, since 1970, there has been a general tendency of demanding such reforms after every election. The dharnas in Islamabad and protests across the country have brought to the fore an urgent need for electoral reforms. If certain issues regarding electoral process are not addressed urgently, they might jeopardise our whole democratic structure.
Elections are considered the most important event for running the system of a country. It is a decision-making process through which people choose individuals to hold public offices. So, the elections should help precipitate the national will in its truest possible form. The elections show the resolve people have in the continuity of the democratic setup.
But, in Pakistan, since 1970, almost all elections have been termed as ‘rigged’ and ‘stolen’. That’s why the political scene in the country has always been dominated by the need for electoral reforms. Generally, the term ‘electoral reform’ is used for the purpose of introducing some fundamental changes in any electoral system.
Democracies can only strengthen and prosper if there is a regular review of the system and introduction of requisite amendments thereupon. For instance, our next door neighbour, and the world’s largest democracy, India, has been having comprehensive, regular reviews of its election laws since 1967 though the amendments made thereupon have been ad hoc and ones largely suited to the interests of the party in power. But, in Pakistan there has not been any such review witnessed since long. While 2013 polls were trumpeted to be free and fair, with the highest voter turnout in decades, the process was, undoubtedly, marred with malpractices and irregularities. Soon after the polls, there were claims of rigging; for example, candidates recovered ballot papers from unusual locations as ‘proof’ of wrongdoing while in a few constituencies, it was discovered that many votes were fake or even unverifiable. So, in these circumstances, reforming the electoral system of Pakistan has become more than inevitable. In this regard, following ten key areas require urgent reforms:
1. Reinvigorating the ECP
The Constitution of Pakistan requires that the Chief Election Commissioner (CEC) and members of the ECP should have a superior judiciary background. However, this restriction has kept many talented people away from taking part in this most important organ of our country’s democratic structure. This precondition is totally unnecessary and unwanted because it excludes people having rich administrative experience. One of the four ECP members may come from legal sodality, but having only the former judges in all the five positions should not, at all, be necessary. It will be also a prudent step if an upper age limit for the CEC and the members of the ECP is fixed. The selection procedure of the CEC and ECP members should be multi-partisan rather than bipartisan. The system of recruitment, promotions and on-the-job training for ECP staff also needs a complete overhaul.
For improvement of electoral system, it is necessary to give maximum autonomy to ECP; not just administrative but financially as well. The independence and strengthening of ECP must also be ensured.
2. Voting Processes
Most complaints in Pakistan’s 2013 general elections related to the identification of voters. Allegedly, a number of votes were cast by persons other than bona fide voters as per the findings of the thumb impressions verification reports prepared by the National Database and Registration Authority (Nadra). In some cases, a single person had cast more than 100 votes as his thumb impression was recognised by Nadra on as many counterfoils. It is, therefore, very important that a biometric system of voter identification is put in place so that the voter is biometrically identified prior to the casting of vote. In Pakistan, thumb impressions of over 90pc of the adult population and 100pc of the registered voters are secured in Nadra’s databank. The new technology has made this biometric identification not only feasible but economical as well.
3. Scrutiny of Nomination Papers
Before the 2013 general elections, the Election Commission had sought amendments to the Representation of the People Act so as to extend the period for scrutiny of nomination papers to 30 days. Unfortunately, the proposal could not get legislature’s approval. However, it needs to be taken up at the earliest. The Supreme Court and parliament should also play their due roles in interpretation of — and amendment thereupon to — the provisions of Articles 62 and 63 which lay down the qualifications for members of the parliament. This is necessary to removing ambiguities and making these provisions uniformly enforceable.
4. Political Financing
Almost every election in Pakistan has witnessed novel campaign trends which get greater public attention. In recent years, the money has been flooded into the process and parties have been increasingly devoting huge resources to commercials on electronic and print media. Although Pakistan’s electoral laws place a ceiling on the spending of individual candidates, yet no such ceiling is there on the overall spending of parties. There is a need to regulate the election campaign through the commercial media and place a ceiling on such spending by political parties. The ECP had also failed to ensure compliance with the ceiling on spending by individual candidates. This is an area where the ECP needs to develop a system of appointing its own election observers in each constituency to ensure strict compliance with the prescribed ceiling on spending. Indian experience of this sort can serve as an example to follow.
5. Appointment of Caretaker Setups
The procedure for the appointment of caretaker governments also needs an immediate review especially in the light of the experiences gained during the 2013 general elections. Article 224 (1A) of the Constitution of Pakistan reads:
“On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care-taker Cabinet:
Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly:”
But, political parties had exploited the lacuna in this piece of legislation and have blatantly flouted the spirit of the law. For instance, MQM remained an ally of the PPP government in Sindh for almost the entire tenure. But, when the dissolution of the provincial assembly approached, it quit the government and got elected its MPA as the leader of the opposition, leading to the appointment of a caretaker government which excluded the real opposition from the consultative process.
6. Statements of Count
One of the vulnerabilities of the prevailing polling practices is that the result compiled at polling stations may be manipulated or tampered with before consolidation by the returning officers. In order to enhance the credibility of the counting process, the statement of count prepared at each polling station should be posted on the ECP website as soon as it is received at the Election Commission.
7. Polling Staff
A major chunk of polling staff comes from provincial government departments recommended by the outgoing provincial governments. It is a known fact that recruitment in these departments has traditionally been strongly influenced by local politicians who expect payback from them during elections. Stronger supervision by the ECP and exemplary disciplinary action against those members of the polling staff who violate rules will act as an effective deterrent. Additionally, polling staff from one division or district should be appointed in another division or district so that it may perform functions free from local powerful elements.
8. Functioning of Election Tribunals
The law mandates election tribunals to decide election petitions within four months. Unfortunately, this timeframe is hardly followed. There have been instances that the ETs did not decide the petitions till the end of the constitutional tenure of an assembly. Additional measures are needed to decide all petitions within four months.
9. Supervision by a Parliamentary Committee
There is a need for a permanent parliamentary committee specifically working on the election law and reforms to look into conduct of elections. ECP should also submit an annual report to a parliamentary committee too. This committee will not only oversee the conduct of elections and by-elections, it will also look into the ongoing electoral processes including electoral disputes, preparations for the upcoming electoral events, status of implementation of the ECPs strategic plan. The committee can also make recommendations for improvements in election legislation.
10. Delimitation of Constituencies
Delimitation is another important task, which needs certain changes. Most of us think that we need census for delimitation, whereas it’s not the case. There are many constituencies which need delimitation as the spread over large areas where voter populations is very high or low and many cases the boundary of a constituency doesn’t meet but it has been done on the political pressures and the wishes of political elite in different areas of Pakistan.
Hopefully, if reforms are pursued with dedication and honesty in Pakistan, and most importantly, implemented in their true spirit, the electoral process should become a much more transparent and error-free exercise.
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MORE than two-thirds of almost 814 million voters turned out to vote in the latest Indian election. The political parties accepted the result, congratulated the winner and moved on. No questions about the credibility of the election were raised. No charges of rigging by the Election Commission of India were hurled.
In Pakistan, the situation is quite different. A year after the elections, some mainstream political parties are contesting the poll results, raising questions about the partiality of the Election Commission of Pakistan (ECP) and providing evidence that they were cheated. The legitimacy of the government is being challenged, raising concerns about democratic stability in the country.
What constitutes a major difference between the two countries is the role of their respective election commissions. Undoubtedly, the election commission in India is independent; its counterpart in Pakistan may be independent but it is toothless, or acts in such a way. Its ineffective control over the executive and judicial officials engaged to assist in election administration or otherwise leaves sufficient space for a multitude of actors to influence the electoral processes at various stages, thereby creating issues of credibility.
The ECP is unable to control them completely as it admitted in at least one of its statements to the press in recent weeks, and now in its five-year strategic plan that has been circulated among a wider audience for consultation and improvement. The commission is right as far as its acknowledgement of lack of authority is concerned.
Postings and transfers of executive and judicial officials through the election process; widespread and visible breach of campaign finance limits; subjective scrutiny rather, humiliation of candidates; documented violations of voting and counting processes; typographical and arithmetical errors (intentional or unintentional) in documentation and consolidation of results; absence of a swift election-complaint handling mechanism; an abysmally high number of votes (1.5 million) rejected and not counted; and the refusal of returning officers in at least 114 constituencies to share the result forms despite ECP instructions are some flagrant violations documented during the 2013 polls. These need to be addressed.
These irregularities are neither new, nor have they been raised for the first time. However, this time the claims of irregularities, politically articulated as rigging, are rather loud and not dying down, perhaps because the expectations of voters and parties for improved elections were raised after the appointment of the chief and members of the ECP through political consensus with a buy-in even from parties which are now at the forefront of the demand for their resignation.
Moral and ethical considerations aside, the ECP members simply cannot be removed in any other way than what is prescribed for the impeachment of a judge of a higher court through action by the Supreme Judicial Council. This constitutional protection to the term of members also underlines their independence.
The ECP can, however, work overtime to establish its credibility by undertaking an honest assessment of the 2013 general election in an effort to hold the erring officials, whether executive or judicial, accountable in line with Section 91 of the Representation of Peoples Act 1976.
The 18th and 20th Amendments to the Constitution might have enabled a more transparent mechanism for the appointment of the chief and members of the ECP, in addition to protecting their tenure, but subsequent legislative, regulatory and implementation-level reforms were never introduced to translate the commissions independence into authority.
The much-hyped independence, therefore, could not be translated into the assertion and enforcement of authority that is needed to rein in a multitude of state as well as political actors who have an interest in influencing the result. The lacunae in the election law enable individuals as well as institutions to influence the election process, which needs to be completely insulated from executive and judicial interference.
While the nature and scope of election reforms need to be defined by the political parties themselves through a political dialogue, any effort must strive to achieve a transparent, accountable and efficient election system that inspires public trust, a perquisite for the credibility of future elections. The ECP must be given complete power over approving election rules, budget, organisational structure and operations.
Secondly, complete authority is a prerequisite to enable the ECP to be in control of the conduct of elections and not just be a bystander. The commissions orders given to the executive during the election process must be binding. In addition, election law must also grant full authority over seconded staff to direct, sanction and remove such staff while conducting elections on its behalf.
Thirdly, judicial officers should not be entrusted with election duty as it causes a conflict of interest. In addition, the judiciarys role in an appellate capacity needs to be reinforced to ensure the swift disposal of electoral complaints and petitions.
But what will be critically important is the process to finalise electoral reforms. A joint parliamentary committee with an overall mandate may be formed with proportional representation of the parties in the two houses, provided that all parties in parliament have at least one member. This may be a good starting point.
With the shadows of instability lurking in the background, the questions being raised about the quality and credibility of the 2013 general election and demands for electoral reforms need to be addressed as they are critical to political stability and the consolidation of democracy in Pakistan.
The writer works with the Free and Fair Election Network.
Published in Dawn, May 24th, 2014
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