A price for independence

Published March 20, 2021
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.

IT was simply unprecedented. Three senior ministers of the government of Pakistan addressed a press conference using the official premises of the Press Information Department and demanded the resignation of the entire Election Commission of Pakistan — a state institution established under the Constitution. The ECP has been criticised by one political party or the other in the past, usually after the election results, but never has a sitting government ever asked a constitutionally mandated body to pack up.

It was only in January last year that the incumbent chief election commissioner and two other ECP members were appointed to a five-year term with the consensus of the prime minister and the leader of the opposition. In the case of the chief election commissioner, it was the prime minister who had reportedly proposed his name and the leader of the opposition concurred with his choice.

The ECP enjoys wide-ranging powers, probably a little more than its Indian counterpart, but the general perception in Pakistan is that in the past it has been slow to act and failed to assert its authority in the case of violation of electoral laws and the code of conduct.

Things probably began to change when the commission got its first chief with a civil service background about a year ago. Earlier, the Constitution required members of the ECP and its head to come from a judicial background unlike the Indian election commission whose members generally come from the administrative services. It was in 2016 that the Constitution was amended in Pakistan to widen the qualification of ECP members to include a civil service background besides judicial experience. A constitutional amendment in 2010, had provided for full-time members of the ECP unlike the earlier scenario when high court judges doubled as members of the commission.

If fair polls are the goal, the ECP’s powers must be jealously guarded.

Trouble between the government and ECP started to brew during a recent by-election in NA-75, now commonly known as the Daska constituency, which was hotly contested between arch-rivals PTI and PML-N. The ECP, unlike in the past, took some prompt and decisive actions for the sake of electoral integrity. The most intriguing was the case of some 20 presiding officers who went missing after polling closed. They neither sent a picture scan of the result sheet nor did they report to the returning officer as they were supposed to do according to the Elections Act and the rules. The mobile phones of the missing presiding officers were switched off and ECP calls to the local and provincial administration remained largely unanswered.

Presiding officers reported to the returning officer the next day after a delay of more than 12 hours. A quick inquiry by the former revealed significant discrepancies between the results reported by the missing presiding officers showing a victory for the PTI candidate and the copies of the vote count given to the PML-N candidate which indicated favourable results for the latter. The returning officer saw clear signs of foul play, and based on his report, the ECP first withheld the result and later declared the entire election void. The PTI, which had claimed victory, strongly protested and challenged the ECP decision in the Supreme Court where the only question being contested is whether the election should be declared void in the entire constituency or in 20-odd polling stations.

The ECP also took action against the erring administration by suspending the district police and administration officers and transferring the divisional commissioner and deputy inspector general of police. The inspector general of police and the chief secretary were personally called by the ECP to explain their lack of accessibility on election day. ECP press releases were candid in blaming the local and provincial administration for their weak response to election emergencies. Probably, for the first time, the commission was seen to be acting promptly and decisively in an independent manner.

Around the same time, the battle for the Senate was heating up. The federal government was very keen that the Senate elections be held through an open ballot despite the fact that an overwhelming majority of experts believed that the Constitution stipulated a secret ballot for all elections under the Constitution except those for the prime minister and chief minister. The government filed a reference with the Supreme Court to seek its opinion.

During the court proceedings, the ECP was asked for its interpretation of Article 226 of the Constitution and it took a firm position that the Constitution provided for a secret ballot — contrary to the position taken by the government. The Supreme Court eventually gave its opinion in favour of the secret ballot two days before the Senate polling day but mentioned in the short order, without elaborating, that the secrecy of ballot was not absolute. The PTI interpreted this opinion in favour of identifiable ballots and tried to persuade the commission to hold the poll accordingly. The ECP declined and the prime minister lashed out at it a day after Finance Minister Hafeez Sheikh, who was the PTI candidate for the Senate from the capital seat, lost to PPP-PDM candidate Yousuf Raza Gilani. The ECP issued a candid rejoinder and rejected the prime minister’s criticism.

The government’s demand for the resignation of all five members of the ECP needs to be viewed against the background of the commission acting independently and asserting its authority probably for the first time in the electoral history of Pakistan. Political parties and the government are perhaps not used to such independence and will take time to adjust the same way as the Indian politicians did to the ruthlessly independent T.N. Seshan, the chief election commissioner from 1990 to 1996.

It is extremely important for the credibility of the electoral process in Pakistan that now when the ECP has started to assert its authority, its independence be jealously guarded, by the commission itself as well as society at large, against all sorts of pressures. The ECP should not be made to pay a price for being independent.

The writer is president of the Pakistan Institute of Legislative Development And Transparency.

president@pildat.org

Twitter: @ABMPildat

Published in Dawn, March 20th, 2021

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