The next democratic

Published July 29, 2014
The writer works with Punjab Lok Sujag, a research and advocacy group.
The writer works with Punjab Lok Sujag, a research and advocacy group.

THE National Assembly speaker has notified the Electoral Reforms Committee. It has 22 Assembly members and 11 senators, and represents all political parties in parliament, barring three single-member parties. It is likely to meet soon.

The committee has a daunting task ahead as Pakistan’s electoral system suffers from a host of problems. Starting from faulty electoral rolls and gerrymandering in constituency delimitation to ‘ghost’ polling stations to non-issuance of statements of count, the list is endless. The committee is expected to fix all these problems one by one. But, howsoever meticulous it might be in fine-tuning the relevant laws, practically speaking the problems are not likely to vanish. Even when carefully drafted rules are put to diverse field tests, loopholes stand exposed and are exploited by vested interests.

Take for example, the law that requires presiding officers at each polling station to hand over signed copies of statements of count (Form XIV and XV) to the agents of each contestant. The PPP complained after the 1990 elections that the presiding officers did not put their original signatures on the statements so that these couldn’t be used as evidence in courts. The complaint was redressed and the rules amended requiring the presiding officers to also put their thumb impressions on the statements.

The rule was made watertight but the problem has persisted in all later elections. The Election Commission of Pakistan (ECP) had to issue a directive, one month after the polling in 2013, asking the returning officers to make the forms publicly available. But this was simply not followed in many cases.

Making the rules impregnable is only half the job done; it is the other half — their implementation — that is where the real problems lie. There are two major drags on the ECP’s resolve and capacity to implement the law and deliver credible and non-controversial elections.

First is the ECP’s relationship with the judiciary. Conducting elections is first and last an administrative job, and those who are judges by training and description do not qualify to perform it. The misconception about their proficiency probably originates from the constitutional provision that calls for appointing retired judges as election commissioners. The underlying sense is that since judges are perceived as non-partisan, elections under their leadership will be non-controversial.

Former president Ghulam Ishaq Khan improvised upon this to hand over constituency-level duties to judicial officers as well, in the 1988 elections. Since then, seven elections have been held practically by the judiciary under the same scheme but ironically none escaped being tainted. The writing on the wall is that the experiment has failed; and this must be acknowledged and corrected.

The administration of elections by the judiciary also forms a clear case of conflict of interest because as an institution, it administers these and then itself adjudicates upon conflicts arising out of their administration. Acknowledging this, the National Judicial Policy Making Committee had in 2009 decided not to lend its personnel to the ECP but retracted its decision before the 2013 elections in the ‘larger national interest’.

The involvement of the judiciary in elections has confused two separate constitutional spaces reserved for two different constitutional bodies. It has made the elections appear like an auxiliary function of the judiciary while the job of the ECP has been reduced to issuing notifications, directives and statements.

In this confusion, the Election Commission has lost its freedom to make decisions and act. The two functions not only need to be separated from each other, the ECP also needs some kind of immunity from judicial intervention. Elections are a time-bound exercise and their administrators need ability, agility and creativity in order to be able to respond to any unpredictable situation at any hour. If solutions are to be subjected to long procedural delays, they are bound to prove useless.

The second most important area where the ECP needs to be empowered is its control over the civil administration. It needs the services of an army of government employees to perform duties at the polling station level. It needs to wean these seconded personnel off any political affiliations, guard them against threats of violence from vested interest groups, check any negligence on their part and make them work efficiently.

Developing other stakes in civil administration is important as peace and order in society are a prerequisite for elections. The ECP also needs the support of all government departments, including the law-enforcement agencies to ensure that the Code of Conduct for pre-election campaigns is strictly followed, that voters are not bribed or coerced, and that there is a level playing field for all contestants.

The ECP has not been able to ensure all of this to the satisfaction of the parties. One likely reason is that this area too is contested by two constitutional bodies, the ECP and the caretaker government. They are both entrusted with the same responsibility of ensuring neutrality in government. This duplication not only creates confusion but also works as a disincentive for the ECP to take the initiative, besides allowing the two to blame failures on each other.

Interim set-ups have traditionally served as a constitutional window for the establishment to intervene in the electoral process. The system of appointment was changed substantially through the 18th Amendment but caretaker set-ups too have failed to meet expectations.

The ECP thus needs a new legal framework for its engagement with the civil administration. There is no harm in taking a leaf from the Indian experience where no caretakers are appointed and the election commission virtually takes over the entire state machinery, as soon as the election process begins and until the results are announced.

The Electoral Reforms Committee will have to avoid indulging in rephrasing old laws and show some creativity. Readers should be reminded that Pakistan achieved an important milestone in its first-ever democratic transition, from one elected government to the next, in 2013. The subsequent milestone should not be the next transition but electoral reforms as only these can take polls and democracy a qualitative step forward.

The writer works with Punjab Lok Sujag, a research and advocacy group.

Published in Dawn, July 29th, 2014

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