Electoral Reforms: One Key To Many Doors
The importance of identification, investigation and eradication of corruption and the corrupt cannot possibly be undermined. Electoral reforms however, are equally – if not more – important and focus need not be diverted to issues that can well be handled simultaneously.
On this 18th of April, a sub-committee formed under the Parliamentary Committee on Electoral Reforms (PCER), submitted that the draft for unified electoral laws (UEL) is in the final stages of preparation and will be tabled before PCER soon.
PCER was formed on the 25th of July, 2014. Rule 7(1) of its rules of procedure states that the Committee shall submit its final report within three months of its formation. However, after a lapse of 21 months PCER is still far from completing its task. With sub-committees yet to submit their reports and recommendations, it doesn’t seem likely that proceedings of the PCER will culminate any time soon.
There is limited information on the Committee’s workings since most of its proceedings are kept secret. No draft of the proposed laws under UEL, or recommendations for amendments to the constitution, have been made public leaving little opportunity for outside review or suggestions.
The European Union’s (EU) Electoral Follow-up Mission (EFM) which was deployed to assess electoral reforms processes in Pakistan, has submitted its report to the PCER wherein considerable dissatisfaction has been expressed over the electoral reforms process. EU’s Election Observation Missions (EOMs), which observed three Parliamentary elections, recommended fifty measures for electoral reforms after the general elections of 2013. As per the report of EFM, none of the 50 recommendations have been totally implemented; only two have been mostly implemented, thirteen minimally and thirty five have not been implemented at all. It is pertinent to note that Pakistan’s progress on electoral reforms is also significant for the continuation of generalised scheme of preferences (GSP plus) status awarded in December, 2013. As per the GSP Plus agreement, Pakistan is bound to ratify, and fulfill its commitments under, twenty seven international conventions including the International Covenant on Civil and Political Rights (ICCPR).
Reforms in Pakistan’s electoral system are long overdue and vital not just for the continuation of our GSP plus status, but more for our own stability, progress and development. There are deficiencies in our electoral laws, and legal provisions that are in field are not entirely enforced. This has rendered almost all the elections controversial. There are loopholes that create room for malpractices and manipulation, putting a huge question mark on the fairness of an election. For the first time after the 2013 general elections, an election controversy has taken a potentially productive shape. Strong reaction from political parties, Pakistan Tehrik e Insaf (PTI) in particular, to the age old electoral transgressions resulted in the formation of an Inquiry Commission and the PCER. The General Elections Inquiry Commission (GEIC) though absolved the Election Commission of Pakistan (ECP) and Pakistan Muslim League Nawaz (PMLN) of the allegations of organized rigging, it did write the most comprehensive commentary on ECP’s inefficiencies and short comings.
While GEIC’s report focuses on the internal functional failings and incompetence of the ECP, several local and international observers find the ECP’s lack of autonomy and authority to be the problem area. PCER should thus ideally be addressing these two core issues:
(i) making the ECP autonomous, independent and more powerful, and
(ii) taking capacity building steps aimed at improving the ECP’s efficiency.
As mentioned earlier, there is little to no knowledge of the PCER proceedings. A proposal to alter the qualifications criteria, appointment method and tenure of the Chief Election Commissioner (CEC) and Members of the ECP has been put forth by the EU. There are reports that there is a consensus on this proposed reform and it is being considered.
However the current members of ECP are due to retire in June, 2016. There is little hope that PCER will complete its work, and – when it does – proposed amendments would make their way through Parliament within the next month. So in all probability the new Members will be appointed as per the current laws and will remain in office till 2021, overseeing the next general elections.
There are several other concerns that may already have been added to the PCER’s agenda. Many of these issues have already been pointed out by the EU and other observers. I will be mentioning a few of my own in the following lines.
Firstly, PCER should consider dividing its work into three phases.
1) In the first phase, proposals for legislation of, and changes in, provisions relating to ECP’s structure and constitution may be finalized, so that said provisions/amendments may be enabled before new Members of ECP are appointed.
Currently the CEC and Members are appointed as per Article 213 and 218 of the Constitution. As per Article 213(2) and 218(2)(b), to qualify for appointment as CEC, a person has to either be a serving or retired judge of the Supreme Court or the High Court; in the latter case he should be qualified to be a judge of the Supreme Court. For appointment as Member, a person has to have been a judge of the High Court. In practice, a retired judge of the Supreme Court is usually appointed as the CEC. With all due respect to the honorable Justices and their fervor, a person who by reason of his age is retired from the position a judge, cannot be expected to efficiently perform the task as mammoth as that of the Chief Election Commissioner with one of the most crucial state responsibilities on his shoulders. Furthermore, the pool of potential candidates is unreasonably restricted to only members of the judiciary. There may be persons more able and apt for the job yet not qualified for not having been a judge.
There is then the method for appointment of CEC and Members covered under Article 213(2A) and (2B). It is the Prime Minister’s and Leader of the Opposition’s prerogative to decide three names, with mutual consent, each for appointment as the CEC and four Members. The names are then forwarded to a committee comprising of almost all the political parties in the National Assembly. While the committee has members from all or most political parties, it is not in the committee’s discretion to change or add to the names already provided to them. They will instead be bound to select from the list provided to them by the Prime Minister and Leader of the Opposition. In practice all the political parties that intend to contest an election will be forced to have a CEC, and Members ECP, proposed by the two major political parties. This may result in controversy and may not be deemed as an appointment by consensus, of the people in-charge of ensuring a free and fair election. In effect there is no constitutional check on the Prime Minister and Leader of the Opposition’s powers to have a person of their choice appointed as CEC or Member ECP.
It may therefore be wise to;
- make changes in the qualifications criteria for CEC and Members ECP so that qualified and able people, other than retired judges, are also eligible for these important slots.
- make changes in the method of appointment to ensure consensus of all the stakeholders and strict adherence to merit.
- a contribution from state institutions other than the Parliament may also be considered, for instance an amendment can be made to include, in the committee, two judges nominated by the Chief Justice of Pakistan, to ensure a fair and transparent process of appointment.
2) The second phase ought to deal with the powers of CEC and ECP, making it a more autonomous and powerful institution.
Although there already are provisions like Article 215(2) to ensure some level of autonomy to the ECP, they are insufficient and the ECP does not seem as powerful and autonomous as it ought to be. Article 221, for instance deals with the rules for appointment of ECP staff. The provision subjects the appointments to the President’s approval. The President is in effect bound in almost all of his functions by the Prime Minister’s advice, as per Article 48(1). Therefore the ECP’s independence to appoint its own staff is curtailed and made conditional to the Prime Minister’s consent. Article 221 also makes room for the Parliament to make rules for appointment of the ECP staff.
It is crucial for a free and fair election that the ECP is not bound down by the whims of Parliament or any other institution, in its appointment or the performance of its functions. Amendments in the Constitution to empower the ECP are thus quite crucial for any actual reform.
- Amendments can be made to make the caretaker Prime Minister subordinate to the CEC and the caretaker Chief Ministers subordinate to the Members for each province.
- The method for appointing caretaker Prime Minister and Chief Minister should also be changed, making the appointments subject to the CEC’s approval.
- The Chief Secretaries of all four provinces should be made directly answerable to the CEC and Members for all administrative matters relating to, and during, the elections.
- The civil administration should be made aware of the ECP’s power. Provisions may be added for empowering the Provincial Election Commissioner to write, either on his own or on a District Returning Officer’s recommendation, a note in any officer’s ACR (Annual Confidential Report) for any of his acts or performance during the election period. Such note should be subject to the Member ECP’s approval and may be made expunge-able by the CEC on application by the aggrieved officer.
3) In the third and final phase, PCER should work on ECP’s capacity building. An autonomous and powerful ECP already having been established, PCER should play only an advisory role in this phase where the ECP takes measures to improve its own efficiency by way of devising strategies that would cater to a host of administrative concerns.
- ECP should make arrangements for the training of its permanent staff. There is already news of ECP establishing a training academy.
- New methods should be introduced for hiring temporary staff to act as monitors, returning officers and presiding officers during elections. The staff may be hired on contract instead of borrowing from judiciary or civil services.
- Such temporary staff may be hired 6 to 8 months before the elections and be comprehensively trained.
- The persons hired on contract should not be informed of where they would be performing their duties, instead should be appointed just a day or two before the need for their presence in that place arises.
- Persons to be appointed as presiding officers should be appointed, in areas other than where they may eventually be appointed, to act as election monitors and observe and report any violation of laws, rules or the code of conduct, by candidates during campaign.
- The staff may also be made to sign sworn affidavits to abide by their oath and violation thereof must be made punishable by imprisonment and fine.
- Codes of conduct for political parties, candidates, media and observers should be made legally binding by making it a permanent part of Representation of Peoples Act or the new proposed UEL.
- Enforcement of all legal provisions should be ensured and un-enforceable and vague provisions should be removed.
ECP, PCER, Parliament, political parties and we the people need to realize that time is of the essence. Even after finalized reports are submitted to PCER by sub-committees, it will take time for PCER to prepare its own report and recommendations. The Parliament will then be required to debate and legislate on the proposed reforms. Only when the laws have been made and amended, will they be injected into the system and ECP and relevant authorities will begin to get acquainted with the new system.
With two years remaining in the next general elections, the nation awaits a productive and improved electoral structure wherein free and fair elections may become a norm instead of an exception. There are distractions on the way, and political parties including the staunchest proponents of these reforms; PTI, seem to shift focus from one thing to another when in fact progress and completion of the PCER’s agenda should be a consistent top priority, for all political stakeholders including the masses. This is the first time that we tread the path to electoral reforms, let’s not lag, let’s not wander off.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
