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Not by code alone

July 05, 2012

THERE is little reason for the Election Commission of Pakistan (ECP) to believe that its code of conduct for candidates for election to the National Assembly issued last week can guarantee free and fair elections. It certainly has to do a great deal more.

The ECP has tried to implement the Supreme Court directives. These directives are apparently related to issues raised by petitioners in a particular case and who might not have taken up all the factors that make the electoral process unfair or undemocratic. Even otherwise there is no need to burden the SC with matters that lie in the domain of politics.

The code envisages a mechanism to monitor a candidate’s expense on his election campaign. This has been an issue ever since elections were introduced in the subcontinent. Filing of expense returns has always been mandatory under the law and many have lost their seats for its violation. That candidates spend much more than the prescribed limit is common knowledge. Gen Ziaul Haq knew this and was also unable or unwilling to stop it and therefore fell back on a hypocritical excuse — saying that he did not want his parliamentarians to lie, he deleted the expense returns provision from the law.

The ECP wants each National Assembly candidate to deposit up to Rs1.5m in a separate bank account and meet all election expenses out of it. The amount of Rs1.5m has been the ceiling on election expenses for many years. This method of controlling election expenses is unlikely to yield the desired result. The candidates will use the special account only for legitimate expenses. They will not use it for purchasing votes.

For unlawful transactions undeclared funds are used and the credit is given to friends or the party backing the candidate. Thus election expenses cannot be controlled unless restrictions on the use of party funds and friends’ contributions are strictly enforced. Failure to keep account of election expenses is an offence under the Penal Code though the penalty is ridiculously low.

The decision to ban the setting up of candidates’ camps near polling stations needs to be examined. The ban on the issuance of voters’ identification slips at these camps can easily be defended because this system violates the principle of secret ballot. But this ban will be justified only if the ECP informs each voter of the polling station/booth where he may cast his vote and his number on the electoral rolls or if the National Database Registration Authority can offer each voter what is described as a smart vote card.

But candidates’ camps are needed for other purposes too. The polling agents need a place to rest. The candidates have a right to post monitors who can respond to any irregularity in polling.

However, it is true that the cost of setting up camps alone can sometimes exceed the total expense limit and it is an unbearable drag on less affluent candidates. Two possible remedies may be considered. Either the camp size and the number of volunteers there may be fixed on the low side, or the ECP can set up a single camp at each polling station where one nominee each of the candidates may be accommodated.

Likewise the ban on the use of transport needs to be discussed. The principle that no voter is more than two miles away from his polling station has been talked about in the past too. It does not solve matters. The restriction on transport to cart voters works well if constituencies are small. In Pakistan many constituencies comprise such great territories that use of transport is unavoidable.

Unfortunately, codes of conduct cannot overcome the conceptual and structural flaws and deficiencies in the law or the inability of the ECP to use its powers to deal with corrupt practices and crimes.

For instance, the ECP has the power to cancel polls in any constituency, indeed in the whole country, if some fundamental principles of fair voting have been violated. It has been one of civil society’s standing grievances that the ECP cancels polling only when violence disrupts peaceful voting or in the event of booth-capturing but never when women are not allowed to cast their votes.

In addition to preventing women from voting the offences mentioned in Section 171-C of the Penal Code and Section 51 of the Representation of the People Act (RPA) demand constant vigilance on the part of the ECP. The Penal Code provision says that anyone who “induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure” commits the offence of undue influence.

In the RPA section the definition of undue influence includes, besides abduction, fraud and maligning of the armed forces, invocation of divine displeasure or religious sanction or use of a place of worship for canvassing. One wonders whether the ECP or any court will punish those who exploit the religious sentiments of voters or use mosques and prayer leaders for electoral gain.

Then there are issues that have been highlighted over the past many years. The system of joint electorates was restored in 2002 but the Ahmedis are still victims of the Pakistani version of apartheid. Has the complaint of the minorities against non-listing of their names in electoral rolls alongside their Muslim neighbours been removed? What is the ECP doing about the proposal for mobile polling stations for people living in desert/katcha areas or prisoners?

The SC has ruled that the first-past-the-post rule violates the majority principle and has favoured compulsory voting and imposition of a condition that only those receiving over 50 per cent of the votes in a constituency should be elected.

These are contentious issues that have been debated by teachers of politics, civil society organisations and international experts for a long time. The ECP must not take any hasty step in these matters. Electoral reform is not a push-button affair and it cannot be done through laws or whiplash alone.

The role of power, status and money in elections needs to be eliminated not only because it makes a mockery of free and fair election but also because it blocks the democratic will of the people, as the poor, including peasants and workers, cannot contest elections. Until we have a more just environment the case for reservation of seats for working people is becoming irresistible.

The system of democracy, including the election system, is under threat, on the one hand, from the vested interest created by authoritarian rulers and, on the other hand, from the extremists who wish to establish their brand of Islam through the use of explosive devices.

In these circumstances the ECP should first tell the people that it has put its own house in order. For the first time we have a multi-member permanent election commission and the public wishes to know how it will function in order to achieve the desired level of efficiency and maintain its independence not only of all state institutions but also from the prejudices and fads and foibles of its members.