Explainer: How Proposed Electoral Reforms Will Impact Next General Elections

Explainer: How Proposed Electoral Reforms Will Impact Next General Elections
Free, fair and transparent electoral processes are critical indicators of democracy and strengthen democratic institutions in a country. The International Covenant on Civil and Political Rights (ICCPR) ratified by Pakistan in 2010, contains commitments relating to civil and political rights as well as the conduct of elections, along with other guiding principles involving other elections related commitments.

Electoral reforms are complex and involve multi stakeholders; therefore, any amendment to existing law has constitutional, operational and administrative implications. 

Electoral process and reform are not linear but complex. Political parties and voters are its primary right holders; whereas the Constitution of Pakistan delegates the mandate to conduct elections fairly, justly, independently and impartially to the Election Commission of Pakistan (ECP), making it lead duty bearer. Presently, a vote cast in Pakistan has both direct and indirect implication and can stay valid up to 10 years. 

  • Direct as cast on poll day to elect for 5 years National and Provincial Assemblies (NA/ PA)

  • Indirectly, it leads to election of:

    • Reserved seat for women and minorities at NA & PA

    • Senators -- valid for 3 & 6 years

    • Speaker of National Assembly & Chairman Senate – both stand valid even if the government is dissolved

    • President of Pakistan 

Part VIII of the Constitution elaborates the conduct of elections. Article 218 specifies the establishment of the ECP, a Constitutional body responsible to organise and conduct elections in the country. It further mandates the ECP to make any such arrangements, on its own and in collaboration, as necessary to ensure that elections are held transparently and in accordance with the law along with guarding against corrupt practices. 

Currently, the population of Pakistan stands at approximately 220m. Approximately 106 million out of total population are registered in electoral roll to vote for 272 National and 577 Provincial Assembly constituencies. The Constitution prescribes that the delimitation of constituencies will be contingent upon the most recent Census. This is critical step that contributes not only towards fairness in conduct of elections but also guards the right of fair representation for the people of Pakistan that register to vote. Last delimitation was undertaken ahead of the 2018 general elections, in line with the then provisional Census data 2017, which stood hugely contested by the province of Sindh.

General Election 2018 (GE-2018), were the largest national election for which 85,317 polling stations were established nationwide. It engaged approximately 811,491 polling staff and deployed 371,000 security officials for the conduct of elections. This demonstrates the administrative volume of one type of election. The magnitude multiplies for the conduct of Local Government Elections at respective provincial level.

What is Election Act 2017 (EA-2017)?

In October 2017, the unified Elections Act and corresponding Election Rules 2017 were enacted as a result of he 22nd Amendment to the Constitution – a consensus based electoral reforms. The EA-2017 is legal unification of eight election laws  that were repealed by the 22nd Amendment and included 42 new provisions besides various revisions of legal nature. Over all it lead to institutional strengthening of the ECP and its constitutional mandate. 

What did it change?

(i) It institutionally empowered the ECP which is elaborated in the Chapter II of EA-2017. it empowered ECP to (ii) regulate the Caretaker Government to not make any major policy decisions, enter into a major contract, appoint, transfer or promote government officials, and influence the election in any form. ECP issued (iii) codes of conduct for political parties, contesting candidates, security personnel, media and observers, both national and internationals. The ECP undertook special efforts to facilitate the (iv) registration and participation of women, transgender, religious minorities and persons with disabilities. It can now declare any result null and void, in case women voter turnout is less than 10% of total votes polled in a constituency (at one or more polling stations or in the whole constituency); and can initiate punitive measures against forcible ban/exclusion of women from voting. (v) Campaign and Political Finance was regulated with revision of ceiling for election expenditure; requirement of dedicated bank account; and submission of expenditure details by all contesting candidates. 

(vi) accountability & transparency of the ECP was enhanced through new rules and regulation i.e. EA Rules 2017; need for an Action Plan for the ECP and post election review report; publication of the list of constituencies, candidates, polling stations details and decisions on complaints etc. on its website; announcement and affixation of results forms at polling stations; and need to prepare and engage a transparent Results Management System (RMS), etc. (vii) it strengthened Election Dispute Resolution Processes that obligated the ECP to address them within specified time and put details on the ECP website. (ix) Use of technology was encouraged focusing (a) use of IT results management; (b) piloting of electronic voting machines and biometric verification; (c) internet voting for overseas Pakistanis; and (d) computerisation of electoral rolls. 

The Election Amendment Act 2021 has been passed by the National Assembly of Pakistan without any debate at the floor of the house. The NA house committee that met approximately 8 times also did not deliberate on it. In the last meeting, in absence of the opposition, it was passed by the committee. The NA committee was not prioritized by the political parties in opposition as they chose not to be present consistently. The views of the ECP being core Constitutional stakeholder was ignored. There 72 proposed amendment of which 51 are textual amendment in existing provisions; 18 are new insertions; 02 substitutions and 01 omissions. As per the press release the ECP has given its no objection to 27 of these proposed amendments and agrees to supports another 8 with minor amendments. However, the ECP has taken a stiff view of 37 proposed amendments that are not supported/rejected. 

Following puts-forth administrative and operational implications of the Election Amendment Act 2021 as passed by the National Assembly:

Section - 8: Power of Commission to ensure fair election. It authorizes ECP to review any order by any officer including rejection of ballot paper. Administratively, the Presiding Officers (PrO) excludes all such doubtful ballots in separate envelope and records the number on form 45 before pasting outside the polling station. The consolidation of results is done in the office of the Returning Officer (RO) including the decision on any doubtful ballot as part of result consolidation. The RO has the authority to make the final decision on excluding of ballot or otherwise, mostly, in the presence of the candidates themselves or their Election agents while consolidating results. 

The proposed amendment under sub section (b) has 2 issues i.e. (i) Limiting the time frame by stating “before consolidation of results”; and (ii) delegation of authority to exclude a ballot from RO to PrO. The amendment delegates powers, unsubstantiated by rules, to the PrO to accept and/or reject a doubtful ballot to satisfy the intended amendment of “before consolidation of results”. There can be argument that its ok lets’ change the rules; but the operational point of concern is that would a PrO be able to do it transparently especially keeping in view the practice of intimidation, allegations of being partisan or both and kidnapping of the PrO on the poll day as happened recently. Keeping this power with the RO is a layered insulation to ensure transparency and removing it will increase vulnerabilities for the PrO and process of ensuring fairness of election.

Section -15: Complaints. It provides opportunity to all and sundries to raise a complaint with the ECP against any of its decision or action, or code of conduct violation under dispute resolution system.

The proposed amendment aims to limit it within 15 days of issuance of order or decision which may be relevant for the same relating to ECP but cannot be applicable in case of the code of conduct violation by candidate or the political party. Complaints will only be possible before the poll day. The author tend to ignore that its an administrative section which in case of litigation is read with other sub sections of the dispute resolution mechanisms. Redressal of grievance  can not be time barred in the spirit of fundamental rights enshrined in the Constitution.

Section – 17: Commission to delimit constituencies. It enables the ECP to undertake delimitation of constituencies on the basis of population, post Census, in pursuance of Article 51(5) of the Constitution. In most of the countries the delimitation of constituencies is undertaken on the basis of geographic location and population. The variation of population is capped at 10%. 

The proposed amendment, firstly, is in conflict with Constitution as any law cannot amend an article of the Constitution. The proportion of the population age 0-17 is 47% in rural areas compared with 41% in urban areas. Secondly, People migrate and/or have temporary residence in Urban area for range of reason and do get their voter transferred to the address of temporary residence. Going by registered voter argument it will lead to enhancement of seats in urban areas, keeping youth bulge in view, that may lead to additional seats which will be disadvantageous to far flung areas of the country like Balochistan and NMD, for example. Thirdly, CNIC is mandatory to be an eligible voter. Overall, only 35% of the household population under the age 18 has a Bay Form which is basis for having a CNIC. In Newly Merged Districts (NMDs) only 7% female have CNIC as compare to 14% men. Hence, delimitation on the basis of registered voters instead of population will further discourage people of age who are yet to register as eligible voter. 

'Invisible' women

There are currently over 10m invisible women in the electoral roll for want of CNIC. This clause will make them invisible for good as having a CNIC has a financial and social cost. Inserting a specific time bar of 4 months for delimitation, prior to election, as proposed is also detached from the fact that incase of disaster – climatic and/or health, it may not be possible.

The proposed amendment fails to be cognizant of the view that the voter registration drive, as a practice is undertaken, before election by the ECP. How will resultant change in the number be accommodated? And by whom? Would NADRA lead voter education too?

The minimum percentage of variation is also proposed to be reduced from 10% to 5%.  Delimitation based on registered voters, if accepted, needs to be a scientific exercise that is able to project 6 monthly to annual trends of people coming of age i.e. 18 years and their residence. Birth registration is still low in Pakistan but is considerably higher in urban (60%) than in rural (34%) areas.

Children from the highest wealth quintile are more likely to have their births registered (76%) than children from the lowest wealth quintile (9%). This is the administrative basis for having a Bay Form and later CNIC. There are no examples to support delimitation on the basis of registered voters especially in most populated countries.

Section – 20: Principle of delimitation: It enables the ECP to be cognizant of the census to estimate and project possible variation of population in constituencies. Keeping in consideration range of factors, as enunciated in EA-2017, while delimiting a constituency the variation is capped at 10%. 

The proposed amendment aims to contour the constituency on the basis of the registered voters. It has 2 fold impact. First, it’s a continuation of Section 17 as explained above. Secondly it, has reduced the variation by capping it at 5%. This proposal disregards the fact that cardinal pillar of delimiting a constituency is geographic boundary besides population and both can not be ignored. While delimiting a constituency, the ECP has to keep in view both geographic boundaries i.e. physical compactness & features like road, river, stream, mountains, etc.; and administrative/revenue boundaries i.e. census/patwar circle which has to be kept intact to keep alignment with the census. Reducing it to 5% variation will compromise either or both. 

Section - 21: Reports of the Commission and List of Constituencies. It elaborates the delimitation of constituencies process that involves wider public consultation, complaints and finalisation of the list of constituencies within 30 days of the exercise.

The proposed amendment allows any aggrieved to approach the Supreme Court within 30 days of the ECP’s decision on finalised constituencies. This administratively is tantamount to opening a Pandora’s box of litigation that cannot be put under a time limit. Besides, it will serve to take away the constitutional powers of the ECP which will not add into any transparency quotient.

Section 25 – NADRA to transmit data: It establishes the terms of reference for NADRA to assist the ECP in preparation of electoral roll ref validation of the CNIC and address for inclusion in the electoral roll for a specific constituency. The ECP prescribes the manner and nature of such data exchange.

Linked to this is (i) Section 35 that refers to publication of electoral roll by the Registration Officer under Section 34; and (ii) Section 43 that relates to information regarding deaths.

The proposed amendment means outsourcing of the ECP’s Constitutional power as per Article 219 to NADRA which requires Constitutional amendment and can’t be done by any Act. Secondly, it authorises NADRA to add a person’s name in the electoral roll in a constituency as per location of NADRA’s office from where fresh CNIC is obtained, which can be as either his permanent or temporary address.

As per practice, it requires assigning of correct census block and not location of NADRA’s office to be part of intended constituency’s voter roll. Likewise, when section 34 is omitted, as per proposed amendment, then there would be no registration officer. Compilation and maintenance of the Electoral roll is the constitutionally delegated mandate to the ECP that can not be passed on to NADRA. This indicates that neither constitutional nor administrative implications of the proposed amendments have gone through a well thought out process.

Section 24- Appointment of registration officers; Section-26 preparation of preliminary electoral rolls; Section 28- preliminary publications; Section -29 appointment of revising authorities; Section – 30 period for lodging claims and objections; Section 31- Transfer of name from one electoral area to another; Section 32- Application by the Registration officer for inclusion of name; Section 33- enquiry into claims and objection; Section 34- correction of electoral roll; Section-36 Periodic revision of electoral roll; Section- 43 information regarding death; and Section-44 Sharing of information with NADRA.

All these sections indirectly relate to delimitation of constituency and directly relates to development and maintenance of electoral rolls. This also have direct and indirect bearing on Section 25 and 35 as discussed above. Section 79 relates to availability of Electoral Roll to the RO. 

The proposed amendments aim to omit all of the above stated sections. This is conflicting with Articles 219 and 222 of the Constitution. Administratively, the prime reason for proposed omission is to transfer the preparation, updation & maintenance of electoral roll to NADRA. Technically, out sourcing core work of a constitutional body to an entity under the administrative control of the Federal government is in itself in conflict with Constitution. Its equivalent of outsourcing the mandated work of the Supreme Court of Pakistan to Ministry of Law & Justice. The proposed section to be omitted are not stand alone but have wider implications from delimitation of constituencies to electoral roll and conduct of election. It also has indirect bearing on transparency and conduct of elections by the ECP. For example, registration officers are not only critical to prepare, update/revise and maintain electoral roll but have key role in delimitation of the constituencies ref establishing correct geographical areas, revenue boundaries, administrative boundaries, census block, etc. By omitting Section 26 & 28 it will take away the right of public to object on published preliminary electoral rolls, which in itself impacts both transparency and accountability. Electoral roll is key to conduct and transparency of election and how the proposed amendment seek to hold ECP accountable for its impartiality when it has would have no role to play in it. Through Section 79 time limit of 30 days before election have been added for provision of electoral roll which is superfluous because these are available with RO much before that being mandatory at scrutiny stage.

Section – 53: Presiding Officers (PrO) & Polling Officers (PO). This obligates the RO to submit an ECP approved list of polling staff to the District Returning Officer (DRO) 30 days before the poll day.

The proposed amendment allows the candidate to challenge the appointment of polling staff; asks for placement of their details at website; and demands that no resident of the constituency be appointed as polling staff. Administratively, given the history of intimidation of the PrO majority of govt officers/officials are reluctant to be appointed for election duty. Given the intimidation is now turning into kidnapping of the PrO, placement of their details at website will jeopardies their personal and family’s safety. There are countless examples of distress by the Polling staff, especially for women, on both mobility and accommodation when posted away from home. Female staff has a family member accompanying them out of their own pocket. Practically there would be no PrO whose appointment will not be contested. Therefore, this administratively is not practical on any count.

Section- 59: Polling Stations. It refers to a voter’s objection to the assigned polling station within a prescribed timeframe. DRO is prohibited to make any amendment in the polling scheme post its finalization and publishing in gazette except in exceptional circumstances.

The proposed amendment calls for an addition that will allow a candidate to file objection to a particular polling station in his/her constituency. This proposed amendment will allow candidate(s) besides voter(s) to file an objection to the polling station/scheme. Technically, a voter and candidates’ objection is not same as each has separate motive and interest. But on the other hand, there is no value addition of adding the word candidate as a candidate in a constituency is registered voter as well so this right in any case is available to him/her. Administratively, ECP has the power to change the polling station even a day before in case of an extra ordinary situation e.g. natural or man-made disaster or else. Therefore, inserting a 72 hours time limit in practical terms is a disadvantage than advantage.

Section – 76: appointment of Election agent. This relates to appointment of a voter as Election Agent by the contesting candidate whose name and particulars are intimidated to the RO.

The proposed amendment intends to raise the number of Election Agents to 5 instead of 1. This proposal will only add to the administrative chaos on poll day for the candidate and RO alike which will be undesirable e.g. who will attend proceedings at RO office? what would be their order of priority i.e. for representation at time of consolidation of results? What if 2 election agents are present in RO office with opposite views? Who will request recount? And/or signing of Form 48. This also self-contradicts with the proposed amendment in Section-90 & 95 where only one person will be allowed during proceedings at the close of poll i.e. either Election Agent or candidate.

Section 94 – Voting by overseas Pakistanis. This facilitates the ECP to undertake all-encompassing feasibility, undertake pilot in bye-election and submit report to the Government. Within 15 days of the commencement of session the government must present it to both houses of the Parliament.

The proposed amendment conflicts with constitutional provisions and existing legislation and require amendment in both.

The proposed amendment has a back ground. This issue has been touted as election agenda by the PTI government. The chronology between January to August 2018 informs that the Supreme Court (SC) of Pakistan not issued (a) verdict to pilot to granting of rights to vote; (b) instructed NADRA to develop a mechanism for i-voting; and (c) even convened multiparty stakeholder consultation session. The event was judicial excess under the then Chief Justice Saqib Nisar. The ECP formed a taskforce, multiple pilot tests were undertaken with NADRA and since preconditions were not in place, the iVOTE system was not deployed for GE-2018. 

In August 2018, the SC, while granting voting rights to overseas Pakistanis, instructed the ECP to launch a pilot during the bye-elections scheduled for 14th October 2018. The Pilot was undertaken that led to 7364 overseas voter registration for 35 constituencies of the NA and PA. The ECP undertook voter education and issued a voter pass to the registered voter.

On election day 6146 overseas voters casted 6233 votes for 34 constituencies. The pilot costed PKR 95 million. This means that a an i-vote costed PKR 15,241. The ECP report to this effect lays out challenges and way forward for the government. The report of the pilot was submitted to the government in line with SC’s direction. 

The proposed amendment obligates the ECP to ‘facilitate & involve’ overseas Pakistan in electoral processes with the support of NADRA ensuring technical efficacy, secrecy, security and financial feasibility. This leads to cardinal question, was the report of last pilot presented before the two houses? If yes – what did it conclude. The government was to present the report to both houses within 15 days of the start of the session which has not been done. 

Moreover, content of the report seems to not have been taken into consideration while proposing this amendment. Secondly, terms like technical efficacy, secrecy, security and financial feasibility are vague unless pegged in any criteria and/or standard, so what is proposed standardisation regime?

Third, if a dual national cannot be a public representative, how can s/he be a voter? Because all registered voters of a constituency has constitutional right to be a candidate. The answered question is that how does the government plans to strip the right of registered overseas voter in a constituency to be candidate? 

I-voting globally is undergoing evolutionary processes and is not taken a preferred option because of cybersecurity concerns. The RTS was also a web-based solution but internet issues made it a technical flop. The ECP report details out technical finding which hold immense value and require deliberations.

Section – 95: Consolidation of result. This refers to immediate announcement of provisional result and recount.

The recount can be requested where margin of victory is less than 5% of total polled votes. The proposed amendment adds “or less than 10,000 votes” whichever is less. This insertion appears benign but can be put to play. The interesting part is that recount may be only done once by the RO – this requires no comment. The sub clause 6 of the section elaborates conclusion of the consolidation proceedings. The proposed amendment has inserted the wording of “notifying the returned candidate’. The sub clause 5 and 6 of the section appears to be in conflict.

For example, subsection 5 empower The ECP to recount but subsection 6 caps powers of the RO by inserting words before conclusion of consolidation. The proposed amendment in subsection 6 will open the stream of applications of recount by the candidates as conclusion of consolidation is proposed to be linked to notifying of the returned candidate under proposed amendment. This will administratively hamper the ECP to conclude and notify result within 14 days of the as prescribed by the Constitution. 

Section – 104: Party list for reserved seats. This refer to a ‘closed list’ of candidates that submitted by political parties for reserved seats of women and Minorities within a prescribed time limit. The names and order in a closed list can not be changed after the submission deadline.

The proposed amendment provides the option to political parties to finalize the reserved list ‘3 days after the declaration of result’. The proposed amendment also calls for fresh list in case a vacancy comes up in reserved seat. Constitutionally, an exhaustive list is shared by the political parties and each vacancy is catered from it till the pre-submitted list exhaust. The option of fresh list has no justification as it would only be serving to political elite capture within a political party at that particular time.

A vote casted on poll day has direct impact in the constituency and indirectly s/he is casting preference for reserved seat candidate as well. Making it open and subject to change not only takes away that right from voter but also increases the risk of personal choices of party elite/leadership to come into play, as all the political parties are devoid of internal party based democratic practices. It also opens the door for political horse trading of new style by the political elite groups and households.

Overall reserved seats are still struggling to be a medium of upward mobility for a political worker and making it open will tightly cap that discussion. Reduction in days from 3-4 may timewise constrain the political parties to encourage independent candidates to join them. Total strength of seats in a party has impact on number of reserved seats. Moreover, as per rules the government can’t be formed unless returned candidate of reserved seat are notified.

Section -195: Information not to be divulged. This relates to conditions and penalties that can be imposed of the employees ECP in-case of divulging official information. This is in line with secrecy of data and the mandate of the ECP.

The proposed amendment thrusts upon the ECP to publish the Commission meeting decision and details of voting when commission choose to decide by majority of vote. This is an attempt to draw parallel to the Supreme Court verdict, the other constitutional body. This will only lead to TV tickers and making ECP controversial than supporting its work within the parameters of impartiality and independence.

Section 202 – enlistment of Political parties. This relates to the parameters of enlistment of political party with the ECP to be able to contest election. Broadly, it needs to submit list of 2,000 members with their CNIC and PKR 200,000 as fee to the ECP.

The proposed amendment increases the number of members to 10,000 with 25% women. Increasing the number of women members to 25% is a good move as it strengthens women’s role in electoral and political processes. However, raising the number to 10,000  on face of it is a good step but administratively it will undermine the regional and smaller parties that have more presence in far flung areas, for example, of NMDs and Balochistan.

The smaller regional parties mostly are representative of ethnic groups, perpetual discrimination by mainstream political parties and geographical deprivation, therefore, they should not denied representation at national and provincial level. It appears to be a targeted/gloved move to upcoming political parties that have a rights based narrative like Pashtun Tahfuz Movemnet (PTM), Awami Worker Party (AWP) and Haqooq Khalq party. It can lead to litigation under constitutional provision of freedom of association and equal representation to all. Trade unions and associations have been dismantled in past that has created political vacuum of thought and practice as it could influence leading political parties of being rights sensitive.

Section -221: Delimitation of Local Government Constituencies. This relate to the same debate  as under national and provincial delimitation, which is constitutionally based on population.

The proposed amendment target the same to registered voters. The arguments again are same as elaborated in section 17 and 20 above.

Section – 231: Qualifications and Disqualifications. This relate to Constitutional provision of Article 62 and 63.

The proposed amendment by additional of new clause intends to put a cut-off date for application of this clauses which is proposed as date of scrutiny of papers. Again a legislation cannot over ride constitutional provision. However, the intent of amendment does not satisfy the simple rationale that is 62/63 applicable as an active elected representative or just relevant on cover sheet for filling papers. It is a contested parameter of conduct for an elected representative that can not be limited to submission of papers.

Overall, most of the proposed amendments are in conflict with the constitutional provision. This appears to be a product of haste without any understanding of practice and issues of the field; and/or cognizance that an Act cannot influence and/or change constitutional mandate.
Contributing Editor