ECP in the spotlight

Asif Ezdi

With barely a few months left to the polling date, Pakistan has already entered election mode. If the country was a well-functioning democracy, our political parties would by now have presented their election manifestoes and would these days be campaigning vigorously for votes on the strength of their past performance and future programmes. But nothing of the kind is happening.

Instead, the main focus is on the composition of the caretaker governments and the role of the Election Commission of Pakistan (ECP). The 18th and 20th Amendments to the constitution now provide for the appointment of caretaker governments through consensus between the major political parties and for an independent ECP, but the new system is as yet untested. It remains to be seen how it will work out. Not all the signs are reassuring.

Given the poisoned atmosphere between the PPP and the PML-N, developing consensus between them on a caretaker prime minister and four caretaker chief ministers will not be easy. To complicate matters, since there is no opposition leader in Sindh, the outgoing chief minister who is from the PPP would apparently have a free hand in nominating the caretaker.

The case of Balochistan is even more complex. Not only is there no opposition leader in the province, the chief minister has also been suspended from his office for the duration of the governor’s rule and it is not clear if he will have a say in the selection of the caretaker government. These lacunas are yet another instance of the botched-up job done by the legal geniuses who drafted the 19th and 20th Amendments.

The PML-N has now also demanded the resignation of the four governors. The party may have valid grounds to suspect that the governors might try to abuse their positions to influence the outcome of the election. But the answer lies in appointing caretaker chief ministers who are not only non-political but also possess the ability and willingness to neutralise the machinations of a partisan governor. The demand for the replacement of the governors is also ‘extra-constitutional’, to borrow the language employed by the PML-N to reject the call for the reconstitution of the ECP.

The fact is that the fairness of the upcoming elections will depend far more on the way that the ECP carries out its constitutional responsibilities than upon the individuals who hold the office of governor or even of caretaker prime minister and chief minister. The key to free and fair elections lies in ensuring that the composition of the commission is above board, that it enjoys the necessary powers and that it makes use of those powers impartially and fearlessly to ensure compliance with the constitution and the laws.

Tahirul Qadri deserves to be commended for having drawn public attention to the issue of the composition of the ECP. By agreeing in the ‘Islamabad Declaration’ to discuss this question with Qadri, the political parties comprising the ruling coalition also acknowledged that if the commission is to accomplish the task entrusted to it, its members have to enjoy the confidence not just of the parties which nominated them but of the wider public.

As regards its powers, the ECP has until recently taken a very narrow view of its authority to act pro-actively in order to ensure free and fair elections, especially against politically powerful offenders. The constitution grants very broad powers to the commission to conduct elections fairly and in accordance with law and requires the executive authorities to assist it in carrying out its responsibilities.

The commission has now invoked these powers to stop fresh recruitments and the misuse of development funds to win votes. Yet, even in the face of flagrant electoral abuses, the commission has in the past acted only when it has been expressly empowered under some enactment or when it has been specifically directed by the judiciary. It failed to take any action against holders of dual nationality until it was ordered directly by the Supreme Court last September. Having carried out minimal action to comply with the court’s orders, it has referred the matter back to the court.

In addition, the commission has also failed to take a decision within the constitutionally stipulated period of 90 days on at least two dual nationality references which have been pending before it.

Similarly, the commission has not taken any action against tax cheats sitting in our legislatures, including some of our leading politicians, whose names were divulged by a public-spirited journalist last month. The least the commission should have done is to refer the matter to the FBR and ask for a report. Instead, it has kept itself scrupulously aloof over the entire sordid affair.

A lesser known instance of the ECP not taking action that could ruffle the feathers of powerful politicians was reported recently by an English daily (The Dawn) on January 20. In a story titled “Convicts, deranged persons and government servants can contest presidential election”, the newspaper quoted the CEC as saying that he “do(es) not know the exact position” about the amendments made by Musharraf to the Presidential Election Rules in 2007 through which the Election Commission was divested of its power to reject the nomination papers of a presidential candidate who was disqualified on any of the grounds named in Article 63 of the constitution.

This amendment was intended solely to preclude the rejection of Musharraf’s nomination in the then-impending presidential elections. It was severely criticised at that time by all opposition parties and by independent constitutional experts. Nevertheless, even after Musharraf was ousted in August 2008. For the CEC to say now that he is unaware of this amendment is all the more surprising because I specifically drew the commission’s attention to this matter in a letter sent last month.

In that letter I also pointed to another major flaw in the Presidential Election Rules: namely that while candidates for election to our legislatures are required to declare their assets and tax payments, presidential candidates are not obliged to do so. The commission, true to its policy of not annoying the political establishment, has taken no steps to remove these serious gaps in our law.

In two cases, the ECP seems even to have been defying Supreme Court orders which go against the interests of powerful political interests. First, the commission has been dragging its feet on the implementation of the court’s judgement of October 2011 directing that constituencies of Karachi city should be delimited afresh.

Second, the commission has been slow, if not also unwilling, to carry out the court’s orders for electoral reform given in its judgement of June 2012 in the Workers Party case. The proposal for runoff voting (also known as the two-round system), which is the most important proposal in the court’s judgement, is conspicuously absent in the Electoral Reforms Bill prepared the commission.

The biggest test of the ECP will come during the promised scrutiny of the tax records of our parliamentary candidates in the coming months. If the commission does not disqualify the tax defaulters, that will be further evidence that it is part of the problem rather than a part of the solution.

Our political parties, in any case, are not taking any chances. The PML-N has already rejected the proposal to extend the electoral process from 60 to 90 days. The party’s real but unstated fear is that if 30 days are allocated for a scrutiny of the candidates’ qualifications by the commission, many of its leading lights could face disqualification. This fear is shared by other parties, including the coalition parties which signed the Islamabad Declaration with Qadri. There is every chance, therefore, that the commitment given by them to give 30 days for ‘pre-clearance’ of the candidates by the ECP will remain an unfulfilled promise.

Courtesy News

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August 2021