Electoral Reforms in Pakistan: Perspectives and OpportunitiesDec 15, 2014
By Ambassador Lars-Gunnar Wigemark, Head of Delegation of the European Union to Pakistan and Marc-André Franche, Country Director UNDP Pakistan
In any country, even in well-established democracies, the legal framework and administrative processes for elections need to be seen as organic, requiring regular review and modification. This is not only to ensure compliance with international standards and obligations. It also reflects a broader political need to engage in continuous efforts to sustain confidence in the efficacy of the democratic system by making sure electoral processes are responsive and inclusive, and are aligned with the expectations of all electoral stakeholders.
In Pakistan, despite the differences, there is recognition among stakeholders, local and international, that electoral reforms are required.The European Union Election Observer Mission, in its 2013 General Elections report, noted that “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.” In a nationwide survey of 4,535 people by UNDP, 49 percent were not satisfied with the existing electoral system while 55 percent said electoral reforms are necessary.
The rhetoric on what needs to be done has to be transformed into coherent and judicious action. A first step should be a cross-party agreement for a new census, followed by the fresh delimitation of constituencies to ensure, to the extent possible, that the population in all electoral constituencies is roughly equal in size.
Whatever the outcome of the current political crisis, all political leaders should acknowledge that holding another election without a new census, and without addressing weaknesses in the legal and administrative framework, is not in Pakistan’s national interest. In fact, it would risk jeopardizing Pakistan’s hard won democratic gains. An opportunity was missed before the last elections to move beyond piece-meal reforms and implement measures required to ensure compliance with international obligations such as the International Covenant on Civil and Political Rights which Pakistan ratified in April 2010. A window of opportunity now exists for political leaders to come together and complete the unfinished business of electoral reform.
The EU Election Observation Mission made 50 recommendations to improve the election process, drawing attention to the critical legislative role that the Parliament must play in order to ensure that future elections are credible, transparent and inclusive. In particular, 17 recommendations were made for strengthening the electoral legislative framework to ensure that Pakistan citizens have the right and effective opportunity to exercise their political and civic rights as spelled out in the international legal instruments ratified by Pakistan.
The formation of a Special Parliamentary Committee on Electoral Reforms, of representatives of all major political parties, offers a platform to seize this opportunity and develop an agenda addressing the grievances and aspiration of all stakeholders, including citizens. Equally significant is that the formation of a Special Committee asserts the primacy of parliament in the electoral reform process.
For meaningful progress, all political parties need to acknowledge that electoral reform requires extensive dialogue, research and public consultation. Therefore, steps should be taken to extend the tenure of the Parliament Committee for at least one year, if not more. It will take time to develop a reform agenda that reflects cross-party consensus as well as broader societal perspectives on electoral reform. So how broad should the reform agenda be - Must it focus just on legal and administrative aspects of elections, or should it also address the political context in which elections take place?
In a series of seminars UNDP has held over the past three months across all four provinces with civil society, academia, youth and women representatives, a recurrent theme has been the need for electoral reform to be a holistic process that tackles issues undermining the credibility of the electoral system. In particular, representatives called for urgent measures to increase the number of women candidates and for a democratic selection process of candidates nominated by political parties.
Some problems will be easier to identify and fix – such as raising the current threshold for candidate expenses – but others are more technical and require considerable research and public debate to ensure that proposed solutions do not inadvertently make a problem worse. For instance, very few countries use Electronic Voting Machines (EVMs), partly due to cost but primarily because of concerns that EVMs have a negative impact on the fundamental criterion for a credible election – transparency. But, EVMs also improve the accuracy and speed of counting and transmitting results. So introduction of EVMs, or other electoral technologies, must be based on a clear assessment of perceived benefits and potential risks.
Finally, from our experience in electoral reform in dozens of countries around the world, successful implementation of electoral reform is conditioned by two factors: sustained political commitment from all parties and an electoral management body possessing the ability and authority to be the vanguard of the implementation process. In Pakistan, electoral reforms, will count for very little unless the Election Commission is given full independence and sufficient resources to exert its authority over all aspects of electoral administration and to ensure reforms are properly implemented.
THE previous National Assembly and Senate can be rightly credited with the passage of the 18th Amendment to the Constitution which also included key electoral reforms such as the bipartisan appointment of the chief election commissioner (CEC) and members of the commission. Despite this impressive legislative record, the 13th National Assembly failed to convert some crucial electoral reform proposals into law.
The Election Commission of Pakistan (ECP) had proposed a package of 24 amendments to the Representation of the People Act but the National Assembly failed to even debate the proposed reforms before its term ended in March 2013. Lack of these reforms played a crucial role in the mismanagement of the electoral process in the May 2013 general election.
It was only natural to expect that the new parliament would take up the unfinished agenda of electoral reforms right after the 14th National Assembly convened in June 2013. But the new government did not take the need for electoral reforms seriously until the street agitation and dharna took place in Islamabad. It has become a hallmark of the PML-N government to not take timely steps and then hurriedly react when pushed by circumstances.
The parliamentary committee on electoral reforms was constituted in late July 2014 when the Pakistan Tehreek-i-Insaf and the Pakistan Awami Tehreek had already started mobilising crowds for a march on Islamabad and the subsequent sit-in. The committee has not completed its work despite the lapse of 22 months instead of the three months allowed to it originally.
Serious steps are needed to establish the sanctity of the electoral process before the next general election.
However, faced with the prospect of the four current members of the ECP retiring in June 2016, the committee recommended a constitutional amendment at the eleventh hour on May 17, 2016 which redefines the qualifications of the CEC and the members of the ECP. The National Assembly hurriedly passed the 22nd Amendment within a few minutes of its introduction. It is rather unfair to deprive the full house an opportunity to debate such an important constitutional amendment.
Now that two years at the most remain in the life of the present assembly and the holding of the next general election, it is important that the parliamentary committee on electoral reforms moves efficiently to bring its agreed package of reforms in the form of a bill or bills before parliament. Further, parliament should not summarily pass such laws without any meaningful debate not only in both houses of parliament but among the people in general as well, unlike the hasty passage of the 21st and 22nd constitutional amendment bills.
Serious steps need to be taken to establish the sanctity of the electoral process before the next general election. Most importantly, the role of big money in the coming elections needs to be controlled. Despite a legal ceiling of Rs1.5 million and Rs1m on election expenses for each candidate of the national and provincial assemblies respectively, the actual election spending by candidates far exceeds the legal limits by a margin of several times. The ECP has been a silent spectator and, unlike its Indian counterpart, has utterly failed to enforce the legal limits on election spending. This is an area where the ECP needs to learn a great deal from the Election Commission of India that has, over the years, developed a highly effective system of appointing its own election observers in each constituency to ensure strict compliance to the prescribed ceiling on spending.
While there is a law in Pakistan which places an upper limit on individual candidates’ election spending, there is no law to control election spending by political parties. Since the dynamics of election campaigns have changed substantially during the past 10 years or so, with increasing reliance now placed by parties on the commercial use of the electronic media, most of the election spending is now diverted to electronic media advertisements by political parties. Many countries including the UK do not allow paid election ads on electronic media because of the exorbitant cost. Some kind of regulation of election spending by parties needs to be included in the next generation of electoral reforms.
As per law, election tribunals need to decide election petitions within four months. Unfortunately, despite the appointment of full-time judges as tribunal heads, barely half of the total petitions after the 2013 election were decided within the prescribed period. Additional measures are, therefore, needed to decide all petitions within four months.
Among the largest numbers of complaints following the 2013 election related to either the returning officers or the polling staff. Most of the polling staff comes from provincial government departments. Recruitment in these departments is strongly influenced by local politicians expecting payback at the time of election. Stronger supervision by the ECP and exemplary disciplinary action against errant members of the polling staff 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 its functions free from the influence of powerful local elements. The ECP also needs to improve the quality of training given to various tiers of polling staff. Remuneration and facilities provided to polling staff also need to be enhanced.
Varied interpretations of Articles 62 and 63 (qualifications and disqualifications of candidates) during the 2013 election also contributed to confusion and loss of credibility of the electoral process. The Supreme Court and parliament should also play their roles in interpretation and amendment (if required) of the provisions of Articles 62 and 63 to remove ambiguities and make these provisions uniformly enforceable.
The major challenge will, however, be in the effective enforcement of election laws and the management of the election process by the ECP. While electoral reforms are important, the real test will be the ECP’s ability to rigorously enforce these reforms and establish its institutional credibility. A judicious selection of new members of the ECP is therefore of paramount importance.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, May 24th, 2016