The Free and Fair Election Network has released its preliminary recommendations for wide-ranging electoral reforms geared towards achieving a transparent and accountable election system that can ensure equal representation of citizens and strengthen democracy in Pakistan.
These recommendations are based on the observation of general and by-elections from 2007 to date and address the key issues that have been marring the quality of elections in the past, thereby raising questions about their credibility.
The recommendations cover ten broader areas that are critical to the entire electoral cycle, seeking complete control of the Election Commission over all electoral processes and providing prerequisite insulation from executive and judiciary that is essential to ensure independence of election-related decision-making.
Unless the independence of Election Commission is translated into authority, the quality of elections cannot be improved. The first step to any reforms effort is unification of all election-related laws that govern various types of elections in Pakistan. This will ensure electoral transparency and access to laws to citizens and candidates and removal of inconsistencies among these fragments pieces of legislation.
The following laws can be unified:
- the Election Commission Order 2002 (Chief Executive’s Order No. 1 of 2002);
- the Conduct of General Elections Order 2002 (Chief Executive’s Order No. 7 of 2002);
- the Political Parties Order 2002 (Chief Executive’s Order No. 18 of 2002);
- the Representation of the People Act 1976 (Act No. LXXXV of 1976);
- the Delimitation of Constituencies Act 1974 (Act No. XXXIV of 1974);
- the Senate (Election) Act 1975 (Act No. LI of 1975); and
- the Qualification to Hold Public Offices Order 2002 (Chief Executive’s Order No. 19 of 2002).
Amendments to the Constitution are needed to review qualifications for the Chief Election Commissioner and a Member of the Election Commission as well as to protect their term in office. The CEC and Commission members should be selected on the basis of professional qualifications and management experience in overseeing large-scale activities roughly similar in scale to election exercise in Pakistan. Additionally, female representation on the Commission should be ensured.
Moreover, the Constitution should also define the timeframe for the appointment of the CEC and Commission Members. The appointment of CEC and members must conclude in no more than 3 months and before the last day of the incumbent in office. In the case of decapitation, leave or travel of the CEC, the acting CEC shall be nominated from among the Commission members on the basis of rotation.
To ensure insulation of the Election Commission from the executive, the election law be amended to authorize the Commission to approve rules and regulation. In addition, it should be established in election law that the ECP will have authority to alter its organizational structure, hire personnel and to manage its own budget, giving it authority to approve that budget, maintain accounts, create posts, and authorize supplementary grants. A new Election Service Cadre shall be introduced in order to attract most competent citizens to the service of the ECP.
Moreover, legal amendments are required to grant authority to the ECP to appoint District Returning Officers (DROs) and Returning Officers (ROs) from among all citizens, including from amongst its officials. ’s reports suggest that the elections managed directly by officials of the ECP are better managed as compared to the ones that are administered by judicial officers.
The ECP order, directives, notifications given to executive during the election process must be binding, breach of which must carry a penalty. In addition, election law must also grant full authority over seconded staff to direct, sanction, and remove such staff while conducting elections on its behalf. Election staff found guilty of illegal practices must be terminated from government service, in addition to penalties already prescribed in the law.
To ensure insulation of the election administration from judiciary, legal bar should be placed on the appointment of judicial officers on election duty as it causes a situation of conflict of interest as well as an issue of independence of judiciary when it hears election appeals and petitions.
Any decision made by the Election Commission or any of its designated official or tribunal after the announcement of the election schedule shall not be subject to judicial review until the announcement of the election result.
Similarly, any petition under review of an election tribunal after the announcement of official Gazette shall not be subject to the any scrutiny, review or stay by the higher judiciary pending the decision of the tribunal. Moreover, election law shall include provision for candidates to file petitions in tribunals against the officials on election duty and government officials for unduly breaching election laws.
On the issue institutionalization of election reforms as a continuing process, a joint parliamentary committee may be established with an overall mandate to engage with the ECP in meeting their legal, financial and organizational requirements to ensure quality elections. The committee should also review the quality of elections on the basis of reports of the commission, observers, media and other sources to sustain the process of reforms. The Committee itself may be formed with proportional representation of the parties in the two Houses, providing that all parties in the parliament have at least one member.
To address the issue of skewed allocation of national assembly seats across Pakistan, amendments to the relevant law wherein while constituencies may vary in size according to legal parameters, the size of constituencies within and among districts, provinces and territories should vary by more than 10% only under exceptional circumstances. In such cases, the reasoning for this decision should be made public.
The non-conduct of census has created serious voter-to-constituency and population-to-constituencies discrepancies that are undermining citizens’ representation. Until census is held, the ECP must undertake, under section 10A of the Delimitations Act 1974, delimitation of constituencies within districts and across districts to bring proportionality. Moreover, the process of delimitation must be made transparent by ensuring public input into the redrawing of boundaries.
To improve and enhance voter registration, legal changes should be made to allow ECP to engage any public sector institutions in preparing and maintaining current, accurate and complete electoral rolls in advance of electoral processes. The law should establish that, in doing so, the ECP may coordinate with other government agencies, including NADRA regarding the removal of deceased and exclusion of persons declared of unsound mind. While the civil and voter registries are integrated with control of electoral rolls resting with the ECP, the process of registration of voters must be simplified. The consent of a citizen to be registered as a voter and his/her preferred address—permanent or current as on the CNIC— must be sought at the time of the registration of the CNIC.
The ECP shall also be allowed to employ any technological solution that it deems suitable to ensure free, fair, transparent and honest elections such as biometric system.
The period should be three to six weeks during which provisional electoral rolls for electoral areas are displayed publicly at polling sites and claims and objections may be lodged. Moreover, it should be established in the election law that electoral area-wise voter lists are posted at individual polling sites. In turn, the law should stipulate that voters will be able to verify their place on the voters’ list.
On the nomination process, the candidate qualification and disqualification should not be subject to the interpretation of the Returning Officer. There should be a standardized system in place for candidate scrutiny to ensure the uniformity of the process. The candidate qualification should be revised in the constitution to be the resident of the contested constituency or alternatively limit one candidacy per person per election.
The ECP must be legally bound to proactively make public information acquired from contesting candidates on their nominations forms to enhance voter interest and scrutiny. The duration of the candidates’ scrutiny process must be extended up to three weeks to enable the ECP to verify and validate the documents submitted by the candidates.
Similarly, allocation of an election symbol to any political party shall be subject to provision of record of annual audits, inter-party-elections and membership register. The law should also define parameters and conditions for the allocation of symbols to alliances of political parties as the existing Political Parties Order is silent on the issue.
One of the critical amendments being proposed is the protection of Codes of Conduct for Political Parties and Contesting Candidates, Election Observers and Media under the election law.
The Codes shall be revised annually in consultation with the country‘s political parties or the joint parliamentary committee and shall be issued without further consultation once an election has been called. It is necessary to establish in the election law that codes of conduct for selected stakeholder groups will become part of the election regulations overseen by the Election Commission while providing the Commission with the authority to issue warnings and impose fines or binding orders.
Calling for the establishment of permanent polling stations, proposes that the list of polling stations shall remain valid for three years and be revised through a consultative process involving public. Moreover, the election law must define a process and conditions under which a polling site location is altered in advance of an election. Such changes will be permitted, but only with the approval of the Election Commission and following publication of the site‘s location on the Election Commission‘s website in order to announce the change to voters within the constituency. However, no change should be allowed once the parties and candidates are issued symbols during the election process.
Wide-ranging legal and procedural reforms are required to improve the quality of voting and counting processes. Ballots printed should be marked with unique and secure features for each constituency to deter fake ballots and to minimize conditions that may willfully be created by election officials that lead to rejection of votes.
Moreover, a regulatory framework is required for ECP to exercise punitive aspects of election laws dealing with malpractice and malafide of the election officials and other individuals violating the sanctity of the electoral processes. The ECP-designated officials may be authorized to exercise these penalties. Similarly, the process to penalize government officials and security personnel influencing election needs to be spelled out. The penalties by the Commission or its designated officials may only be challenged in high courts.
There is a need for the rationalization, enhancement and enforcement of penalties established in the election laws for illegal practices, corrupt practices and canvassing and campaigning in restricted zones in and around the polling station.
Transparency of the vote counting, consolidation and documentation shall be ensured through legal amendments including mandatory issuance of the Statement of Count and Ballot Paper Account to the contesting candidates, observers and media and shall be displayed outside each polling station for the public. The same shall be published by the ECP on its website to deter the practice of post-polling election irregularities and malpractices. The official Gazette of the returned candidate shall only be published after these documents have been made public. A mechanism shall be put in place to address any post-poll irregularity before the announcement of the Gazette.
The election law shall provide specific timeframe and guidelines for timely announcement of the formal result (FORM XVII) and mandatory recounting of the ballots in constituencies such as in instances where margin of victory is less than 200 votes or where the margin of victory is less than the number of rejected votes etc. Mechanism to deal with situations at polling stations where the turnout is either zero or over 100 percent, or the turnout is minimal owing to a known case of voter suppression such as violence or agreements between local influential to bar voters shall be defined in the law. Discretion of election officials in cases of recounted shall be eliminated.