Hassan Nasir Mirbahar and Alexander Simm
Pakistan’s new election law has caused political uproar since its passage in early October 2017. Major opposition parties have appealed against the Elections Act 2017, with petitions to nullify the law lodged in the Supreme Court. Meanwhile, the religious party Tehreek-i-Labbaik Ya Rasool Allah staged protests against the new election legislation. Escalating in late November, the protests left several people dead and hundreds more injured and ended only with the resignation of Law and Justice Minister Zahid Hamid.
As these events have unfolded, the Elections Act has unsurprisingly come in for criticism and attracted a raft of bad press. But is the new law all bad?
Controversies notwithstanding, the Elections Act is the first major electoral reform effort since Pakistan’s first direct elections in 1970. The vast majority of media attention the Elections Act has received is based on a partial and possibly unfair reading of the law, focused on a few, now infamous provisions. And no wonder: election laws are typically long, complex and densely technical documents. Having unified eight existing laws into one, Pakistan’s Elections Act 2017 is all these things and more.
The political unrest of late is no doubt alarming, but it also risks overshadowing the extensive work behind the Elections Act. Pakistan’s Parliament deserves less bad press and more credit for this initiative and the numerous positive measures the new law introduces – measures which have considerable potential to enhance the credibility of elections in Pakistan, if effectively implemented (see our briefing paper for more on this).
Here, we dissect the key reforms of the Elections Act 2017 as well as highlighting areas where it falls short.
Where the law succeeds: key reforms
Empowerment of the ECP: The Election Commission of Pakistan (ECP) now has more financial autonomy and is invested with powers equal to those of a high court. It can now initiate disciplinary action against any staff involved in the conduct of elections found to deviate from electoral laws or rules. The ECP had lacked such powers in the past and had struggled to take necessary action against staff seconded from other departments. The ECP is charged with making rules for the conduct of elections and can even define provisions for anything not explained in the law. In the past, the ECP required presidential approval for making rules – a requirement which caused delays during the 2013 general election. The law still requires presidential approval for the ‘removal of any difficulties’ that the ECP might face in the implementation of the act. Giving this authority to the ECP is warranted with provisions that information about any ‘removal of difficulties’ is promptly made public.
Improved accountability and results transparency: The ECP is a public body and like any other public institution, it should be accountable. The Act introduces key measures to this effect, such as the ECP’s obligation to make its rules available for public comment and its responsibility to prepare and submit annual reports for review by the federal and provincial legislatures. The ECP is further required to prepare a plan for the conduct of elections four months in advance of a general election, reflecting all necessary preparations to hold genuine elections, as well as a post-election review report. The Election Act also requires the ECP to take measures to enhance the transparency of the results process –lack of transparency had in the past harmed stakeholders’ confidence in the electoral process. These include 1.) establishing an electronic results management system and proactively publishing results at polling stations and on the Commission’s website; and 2.) introducing a results transmission system through which presiding officers at the polling station level can send snapshots of result forms via smart phones directly to the Returning Officer and ECP. The results transmission system can be expected to face some challenges due to its reliance on cellular data coverage which is not available everywhere in the country, the heavy costs involved in procuring mobile phones and training of polling officials in using the system.
Participation of women and simplified voter registration: The ECP is now empowered to nullify results in constituencies where womens’ turnout is equal to or less than 10% as well as take action against any agreements that forcibly ban women from voting. This broad discretion requires further definition of how exactly the ECP will use this power; however, it is nonetheless an important measure to improve women’s participation. A further positive measure to enhance women’s participation as candidates is the requirement for political parties to field women candidates on at least 5% of general seats for national assembly and provincial assemblies’ elections. The ECP is, moreover, required to make active efforts to improve registration and participation of women, as well as religious minorities and persons with disabilities – an important provision given that unregistered women alone are estimated to? account for 11 million. More broadly, the voter registration process has now been simplified so that anyone who is applying for a computerised national identity card (CNIC) from NADRA can opt to register to vote at the same time. They can also choose to be registered at their “current” or “permanent” address.
Complaints and Tribunals: The Act provides every citizen the right to file a complaint with the ECP on almost any aspect of an election – the first time that citizens have been afforded such an opportunity. The ECP is required to address complaints within 30 days of their receipt and publish information about the complaints on its website. Petitions related to candidacy and results, however, remain limited to candidates (areas which would, in future, be useful to extend to citizens and parties as well). Nevertheless, the procedure for lodging a petition on candidacy or results has been considerably streamlined as candidates may now submit petitions to a tribunal directly, whereas previously the ECP was responsible for receiving petitions and transmitting them to the tribunal. Such reformation of the process will help to reduce the kinds of delays observed by the Free and Fair Election Network (FAFEN), which found several petitions from the ECP to the tribunals had been transferred six months after the deadline for filing of the petitions.
Caretaker setup and local government elections: The Election Act makes an important leap in defining the functions and limitations of caretaker governments and establishing the contours of action these interim governments can and cannot take, restricting them from taking any major policy action. In addition, the Act sets out a legally binding timeline for the conduct of local elections, which must now be held within 120 days after local councils complete their tenure or are dissolved.
Where the law falls short: priorities for future reforms
Use of voters’ list data for delimitation: Electoral constituencies in Pakistan vary significantly in size: for example, NA-19 (Haripur) has more than 500% more voters than NA-41 (Tribal Areas VI), with the former tallying 531,685 voters and the latter just 92,719 voters (see a paper by Democracy Reporting International for more on this). This substantial variation distorts the equality of vote – that is, the idea of ‘one person, one vote’. To address this, the Act limits variation in constituency size to a maximum of 10% in line with international good practice. However, the Act limits the data used for boundary delimitation to official population census data only. The December 2016 draft of the Election Act had allowed for the use of voter list data for delimitation in the absence of a census, but this provision was removed before the bill’s passage in parliament. Expanding the data sources that can be used for delimitation affords the responsible body – typically the election commission – greater flexibility in carrying out this core task and often contributes to more accurate results. Restricting the data for delimitation to official census data is particularly problematic in Pakistan’s case in light of the delays in the current census, which is the first to be conducted in 20 years. To allow for delimitation ahead of the 2018 elections, the federal parliament passed a constitutional amendment in December 2017 enabling the ECP to use provisional data. This is, however, a one-time exception and in future the ECP will still be required to use official census data.
Data types, timelines and further transparency measures: Notwithstanding the transparency measures the Act introduces, the transparency of the electoral process could be further strengthened by defining 1.) data types and 2.) timelines according to which relevant data and information must be published. In the case of delimitation, for instance, the Act could require the publication of constituency maps and detailed lists of the areas within a constituency. Moreover, the Act does not require the publication of full tallies of results of all polling stations within a constituency. Making such data and information available would enable stakeholders to cross-verify all results and contribute to enhanced results transparency overall. In a similar vein, the December 2016 draft contained a noteworthy provision requiring the ECP to publish nomination forms on its website. The provision was not preserved in the final bill approved from the parliament, but represents a key consideration for future reforms.
Party finances and disclosure: Further key provisions included in the December 2016 draft of the Election Act but removed before the passage of the final bill related to party finances and disclosure. The draft bill imposed limits for political party expenditures on election campaigns – such limits being essential for ensuring a level playing field between parties and in line with international good practice. Moreover, the draft bill invested the ECP with powers to suspend the registration of a political party which failed to submit its annual financial statements. Such reforms be reintroduced in future exercises.
Inclusion of vulnerable groups: Notwithstanding progressive elements of the Election Act that seek to enhance the participation of women and vulnerable groups, the law retains some problematic and discriminatory measures. Members of the Ahmadi community have typically been placed on separate voters list in Pakistan, while all other citizens, including Christians and Hindus, are included in the main voter list. The Act as approved from the parliament repealed this requirement of separate list for the Ahmadis. However, a subsequent amendment bill passed by parliament reinstated the separate list for the Ahmadis. As citizens of Pakistan, Ahmadis should receive the same treatment as all other citizens – the voter list being no exception. Repealing the provisions of the amendment bill that reinstate the separate voter list would provide for the equal treatment of Ahmadis in line with equality of citizens established in the Constitution of Pakistan.
Citizen observers: For the first time, the Act establishes citizen observers’ rights and duties to observe elections in Pakistan. There are, however, still limits as to the electoral processes they can observe. The new election law provides for observer groups to observe the polling, counting and tabulation processes, but does not afford guarantees to observe other essential processes such as boundary delimitation, candidate nomination and dispute resolution. Observers’ access to all aspects of elections thus represents a key area where the Act falls short and which requires amendment to further strengthen the electoral process. In addition, the Act requires observers to acquire security clearance before they are granted accreditation by the ECP. Given that security clearance is a cumbersome process in Pakistan with little clarity as regards timelines and responsibilities, this requirement places unnecessary burden on observers.
This post was written by Hassan Nasir Mirbahar and Alexander Simm. Hassan is DRI’s Pakistan Country Representative and Alexander is Junior Programme Officer for Pakistan.