NationalVOLUME 16 ISSUE # 22

Politics on election reforms

It appears the government and the opposition are playing politics on election reforms. The government aims to bring new laws to ensure “fairness and transparency” in next polls, even though it has to adopt any means and bulldoze the opposition. On the other hand, the opposition is opposing the reforms, without understanding the fact they are necessary for the future of democracy in Pakistan.

The Election Commission of Pakistan (ECP) has also jumped into the fray by objecting to the reforms. It adopted an unusual way to express its reservations about the government move, by publicising its objections to the bill through a press release. Its attitude shows that it is also involved in politics, like the government and the opposition. However, its press release and objections to the bill prove it has become a truly independent and autonomous institution, which will benefit the nation in the long run. The commission has raised objections to 45 out of the total 72 proposed amendments. A document sent to the government detailing reasons for the objections finds 15 amendments repugnant to the Constitution and five inconsistent with the Act itself. A total of 17 amendments have been opposed by the commission on administrative grounds. It says an amendment to Section 17 and Section 221, seeking “delimitation on the basis of voters instead of the population” is among the changes it found to be in contravention of the constitutional provisions. It points out that the amendment is in conflict with Article 51(5), which provides for allocation of seats on the basis of the population. “It requires delimitation on the basis of the population,” it informed the government.

The ECP also objected to the proposed omission of 11 Sections of Chapter-IV (Sections 24, 26, 28, 29, 30, 31, 32, 33, 34, 36, and 44) relating to preparation and revision of electoral rolls, finding it in conflict with the Articles 219(a) and 222(c) of the Constitution. “The Article 219(a) requires periodical revision of electoral rolls. The Article 222 guarantees that no law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission. “The omission of the sections will, in fact, take away the power of the Commission of preparation and revision of electoral rolls and hand over the function to the Nadra, which will be against Article 222,” it argued. The commission also opposed a proposed amendment to Section 25, which aims to empower the Nadra to register a fresh NIC holder as voter, on the plea that registration of voters is an exclusive power of the ECP under the Article 219 of the Constitution. It also assailed a proposed amendment to Section 43, empowering the Nadra to remove the name of a deceased voter from electoral rolls on the similar ground. It also found fault with an amendment to Section 104(4) and (5), providing for submission of a fresh list by parties in the event of a vacancy, as the Article 224(6) of the Constitution requires the provision of additional names only after the previous party list has been exhausted. The commission also found a proposed amendment to Section 122, seeking an open ballot for the Senate election to be inconsistent with the Constitution. It says a committee has already been constituted to propose a mechanism to implement the Supreme Court’s opinion on a presidential reference. “The matter will be addressed once the detailed opinion is issued,” it argued.

The commission has expressed reservations about an amendment to Section 202, seeking 10,000 members of a party instead of 2,000 for enlistment with the ECP, saying that regional parties will find it impossible to increase their membership to the proposed strength of 10,000 members. It also opposed an amendment to Section 231, seeking to add an explanation to set the scrutiny date as the critical or cut-off date for the purposes of assessing the qualification or disqualification, observing that it is in conflict with the Article 62 and 63 of the Constitution, which provide pre-qualification of a candidate and post-disqualification of a lawmaker. “A statutory provision cannot regulate constitutional provisions,” it observed.

The commission also opposed an amendment to Section 9 to decrease the time for it to declare a poll void from 60 days to 30 days. “The Commission may order for inquiry if it deems fit and summon any record it need be, which may require multiple adjournments. The decreased period of 30 days will practically render holding of an inquiry impossible,” it notes. It opposed an amendment to Section 273 prescribing a three-year jail term for a delinquent official on the grounds that Section 188 of the Elections Act 2017 already provides for a penalty of two-and-a-half years to the official concerned for an offence under Section 172(2). “Two penalties for one offence cannot be provided and it is against the Article 13 of the Constitution,” it observed. An amendment to Section 17 binding the ECP to complete the delimitation of constituencies at least four months before the issuance of the election programme has also been opposed on the grounds that extraordinary circumstances may occur. The ECP has also opposed the amendments seeking to provide for challenging delimitation before the Supreme Court, placement of details of polling staff on the ECP website, appointment of polling staff from other constituencies, restricting ECP’s power to change a polling station not later than 72 hours before elections, increasing the number of election agents from one to five and the provision of a soft copy of electoral rolls on USB to the returning officer. All the objections show that they are not serious and the ECP could have resolved them with the government amicably, instead of taking them to the public.

However, the ECP’s objections infuriated the government. It said it was the prerogative of only parliament and political parties, not the ECP, to decide how general elections should be conducted. Addressing a press conference, Information Minister Fawad Chaudhry said, “Being a supreme national institution, it is the sole right of the parliament to enact laws on holding of elections. The ECP is not authorised to question laws passed by the parliament. It has to implement all laws passed by the parliament, while matters related to laws contradicting the Constitution will be decided by the Supreme Court.” He is right. The ECP cannot decide whether a law is against the Constitution or not, as it is the prerogative of the Supreme Court. The court will strike down amendments if they contravene the Constitution.