Introduction
In Democratic World, elections which provide the citizens a legal opportunity to elect their Representatives through free and Fair procedures, are the responsibility of a state. The organization or institution entrusted with the responsibility to conduct free and fair election is required to be autonomous, efficient, unbiased and effective. The Election Reforms Act 2017 was passed by the National Assembly in August 2017, which was considered a landmark achievement.
Section 103 and Section 94 of the new Act mentioned Electronic Voting Machines (EVMs) and internet voting (I-Voting) for overseas Pakistanis respectively and legally sanctioned the ECP for pilot testing of the technological devices in the bye-elections.
By the end of 2020, a sharp divergence of views on the use of technology has come to the fore between Pakistan Tehreek-e-Insaf (PTI) led Federal government and the opposition parties which have deepened with the passage of the Elections (Amendment) Act, 2021; and the Elections (Second Amendment) Act, 2021 in a joint session of the Parliament and further intensified since the PTI government has been ousted in April 2022.
Election Commission of Pakistan
Article 218 (1) of the Constitution of Islamic Republic of Pakistan, 1973, prescribes the establishment of “permanent Election Commission” which provides “for the purpose of election to both the houses of Parliament, provincial assemblies and for election to such other public offices as may be specified by the law.”
The mandate of the Commission as per Clause (2A) and (2B) of Article 213 of the Constitution is to organize and to conduct elections” of the National Assembly, Provincial Assemblies, the Senate and local bodies “honestly, justly, fairly and in accordance with law. The Election Commission consists of Chief Election Commissioner and four Commissioners The executive authorities of Federation as well as of provinces are constitutionally bound to assist the Election Commission in the discharging of its functions.
Chief Election Commissioner is appointed with the mutual consultation of Prime Minister and Leader of Opposition in the National Assembly, And he holds office for a term of 5 years. It is a constitutional requirement that Chief Election Commissioner should be a retired judge/ bureaucrat or technocrat.
Elections History of Pakistan
In Pakistan up till now total 12 elections have been held from 1962 to 2018. In first 15 years no elections were held. First elections were held in 1962 and the other 11 elections were held in 1965, 1970, 1977, 1985, 1988, 1990, 1993, 1997, 2002, 2008, 2013 and 2018 respectively. The elections held in 1970 are believed to be the fairest elections of Pakistan. Unfortunately, all other elections brought controversy either in one form or another.
Election Reforms before 2018
In 2014, PML-N government decided to initiate the electoral reform process. A Parliamentary Committee on Electoral Reforms (PCER) was constituted under the chairmanship of the then Finance Minister Mr. Ishaq Dar consisting of 34 members from all parliamentary parties.
The PCER submitted two interim reports in May and December 2016 to the Parliament. The first report proposed the necessary constitutional amendment for appointment of new election commission and second report along with the draft Election Bill 2017, proposed unification of primary legislation governing Pakistan Elections into one Act.
The election bill was presented on August 7, 2017 and President of Pakistan signed the bill on October 2, 2017 which became law.
Election Act 2017 (EA-2017)
The Election Act 2017 unified eight different election laws and empowered the Election Commission to operate independently. The bill envisaged that citizens getting Computerized Notional Identity Card (CNIC) from National Database and Registration Authority (NADRA) would automatically be voters. The Act also contains enabling provisions for Election Commission to conduct pilot project for utilization of EVM, biometric verification and I-Voting by overseas Pakistanis.
This law rationalized maximum expenses of elections. New limit of expenses is 1.5 million Rupees for election to a seat of Senate, four million for a seat of National Assembly and two million rupees for a seat of Provincial Assembly. Political parties were required to allot at least 5 percent tickets against general seats to women candidates.
The law also provided for delimitation of constituencies after each census, a speedy dispute resolution system, special measures for enrolment of Women and non-Muslim voters, transgenders, postal ballot for people with disabilities and installation of surveillance cameras in polling stations. The ECP got powers to set up a transparent ‘Results Management System’ for swift counting, compiling and dissemination of the election results.
Electoral Reforms after 2018
The PTI government tried to incorporate massive electoral reforms to the Elections Act 2017 in order to eliminate the existing loopholes and ensure transparency in the forthcoming elections. A total of 49 amendments in the existing Amended Election Act 2017 have been proposed. Some of these proposals will have major legal and financial repercussions. Those amendments which have created controversy, excitement and debate among the various stakeholders are mentioned here:
- Article 226 of the Constitution will be amended to hold Senate polls through open ballot.
- Section 11(2) gives more financial autonomy to the Election Commissioner.
- Sections (17 and 20) provides for delimitation of constituencies based On the basis of registered voters instead of population.
- Section 21(5) elaborates that any person aggrieved from delimitation list may file appeal to the Supreme Court.
- Sections 24, 26, 28, 34, 36, 42 and 44 dealing with development and maintenance of electoral rolls by ECP be omitted.
- Section 25 states that electoral roll will be the same as registration of NADRA ID data.
- Section 53 mentions that official working within the territorial jurisdiction of respective constituency or tehsil shall not be appointed as polling staff for that constituency and tehsil.
- Section 61 allows increase in nomination fee from Rs.30000 to Rs.50000 for National Assembly and from Rs. 20000 to Rs. 30000 for Provincial Assembly candidate.
- Section 72 (A) refers to vacation of seat of a returned candidate if oath is not taken within 60 days after first sitting.
- Section 76 (1) relates to appointment of one polling agent for a polling booth not polling station.
- Section 94 authorizes the ECP to ensure voting rights for overseas Pakistanis.
- Section 103 relates to use of Electronic Voting Machine in elections.
- Section 202 relates to enlistment of political parties based on 10000 members (instead of
2000) including 20 percent women. - Section 213 (A) provides for annual convention by political parties.
PTI-Government Stance on Electoral Reforms
- Pakistan Tehreek-e-Insaf (PTI) led government (2018-2022) was staunch advocate of EVM and insisted upon its use in the forthcoming election to eliminate the possibility of rigging.
- Mr. Fawad Chaudhry and Mr. Babar Awan, the Adviser to the Prime Minister on Parliamentary Affairs, presented the prototype of EVM at the Parliament House, Islamabad on May 19, 2021.
- But a senior official of the ECP claimed that the EVM presented to the Premier was nine years old and “unreliable”.
- Similarly, giving voting rights to the overseas Pakistanis was one of the long-standing demands of expat community.
- Government also wanted Senate Election by open ballot and stated that for this purpose constitution would be amended accordingly.
Opposition Political Parties’ Stance
- e Leader of the Opposition from PML-N, Mr. Shehbaz Sharif, termed EVMs as “evil and vicious machines”.
- The PML-N Secretary Information Marriyum Aurangzeb said her party has rejected the testing of the machine “behind the closed doors without any consultation with the opposition”.
- Pakistan Peoples Party also opposed the amendments.
- Both major political parties raised objections on the right of vote to overseas Pakistanis.
- The PML-N also opposed the proposal of delimitation of the constituencies based on registered votes instead of population, for being against the spirit of Article 51 of the Constitution.
The ECP Concerns over Electoral Reforms
The ECP has raised serious concerns over the Election Act 2021 and has assessed that many provisions in the bill may dilute its constitutional mandate. Some of the noteworthy observations
of ECP are as follow:
Proper legislation is required by the Parliament regarding various practical aspects of giving overseas Pakistanis right to vote e.g., dealing the question of separate seats for them in National Assembly and the kind of voting procedure required.
ECP raised serious observations regarding EVM
- a. whether EVM be capable of conducting free and fair elections
- b. whether EVM be operated in various kind of weather and load shedding
- c. how transparency, secrecy and accuracy would be ensured and
- d. whether without proper testing. ECP would be able to conduct free and fair elections.
The ECP strongly opposed the delimitation of constituencies based on registered votes not on population as
- it is against the spirit of the Article 51 (5) of the Constitution which requires delimitation on the basis of population and
- it will also increase the number of seats in cities due to temporary address of the people.
The ECP says it will not support the omitting of some sections of the EA-2017 and handing over the responsibility of preparation of electoral roll 1o NADRA as it is under the control of Federal government and not an independent body.
Election Commission of Pakistan says that under Article 219, registration of voters is the exclusive domain of ECP and the proposed amendments under which the electoral roll will be the same as registration identification data of NADRA will lead to the shifting of power of registration to NADRA.
The ECP says the proposed amendments give powers to NADRA to correct the electoral roll, though it is the constitutional responsibility of election commission to make any correction in the rolls as and when required.
The ECP also disagrees with the amendment that increases the number of members from 2000 to 10000 for the enlistment of a political party. It claims that parties from smaller provinces and those functioning in less populated areas may be unable to obtain these figures, which would be discriminatory, although freedom of association should be supported.
On overseas voting, four options were proposed by ECP including internet-based voting, postal balloting, online voting at Pakistani missions abroad and postal e-voting. The reserved seats and a separate electoral college for overseas Pakistanis was also proposed.
The ECP Special Secretary Zafar Iqbal Hussain argued that the Election Commission supports use of technology, “but it must be secured and tested.”
Elections (Amendment) Act 2022
The PML-N led coalition government after coming to power in April 2022, introduced two amendments in the Elections (Amendment) Act 2022 to revive the Elections Act 2017, thereby removing the use of EVMs and effectively barring overseas Pakistanis from I-voting in the next general elections.
The National Assembly passed the Elections (Amendment) Act 2022 on May 26 citing that the ECP “faces technical difficulties to embark upon conducting elections as per amended provisions” in EA-2021 for using I-voting and EVMs.
Minister for Law and Justice Senator Azam Nazeer Tarar from ruling PML-N said the use of EVMs without pilot projects, was a great “risk” as it required public awareness to use them, additional finances and training of thousands of election staff, steady internet connection and electricity supply in several parts of Pakistan.
Future of Democracy in Pakistan
Out of 12 elections held so far except the elections of 1970, no election has been recognized as free and fair election. Vast disagreement had prevailed after each election.
There has been allegation of rigging, distortion of election process, election engineering, stealing of mandate and Election Commission role was questioned.
Absence of free and fair elections process not only weakens the confidence of the public but also undermines political institutions and democratic culture.
Pakistan was classified as “hybrid regime” and placed at the 104th spot among 167 states under The Economist’s Democracy Index for 2021. It scored 5.67 in the category of electoral process and pluralism; 3.33 on political participation, 5.36 on the functioning of government and 2.50 on political culture.
The future of democracy depends upon the fair electoral process which provides the citizens a fair opportunity to elect their representatives without fear and increases their confidence on electoral system.
In fact, transfer of power through free and fair elections would facilitate democratic consolidation following the return to civilian rule in 2008.
The ECP should be strengthened to extent that it can implement its decisions regarding conducting and regulating of election.
Recommendations
Keeping in view the far-reaching consequences of electoral reforms, government should come forward to build political consensus over the package of amendments to ensure credibility of election reforms and future electoral process.
Political parties should develop the consensus as to whether the current bill should be placed before all provincial assemblies for discussion or need further deliberation.
The government as well as political parties should avoid dragging the ECP into controversies. Unnecessary criticism by politicians which tantamount to disrespecting of ECP should be dealt in according with the law.
Matters need to be resolved at parliament level should not be settled at the platform of media.
Political parties should support amendments like political parties’ registration, election to the Senate by open poll after proper legislation and strengthening of ECP.
Separate and proper legislation may be carried out for introduction of EVM and I-voting for overseas Pakistanis.
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