Beyond dharnas: 12 proposals for electoral reform in Pakistan

Pakistani army soldiers stand guard at a polling station as women queue to cast their ballots during the re-poll of voters in the constituency known as NA-250 - Agencies Pakistani army soldiers stand guard at a polling station as women queue to cast their ballots during the re-poll of voters in the constituency known as NA-250 - Agencies ****************************************************************** The preamble of the Constitution of the Islamic Republic of Pakistan 1973 states “the State shall exercise its powers and authority through the chosen representatives of the people.” Yet, it was 66 years after independence, on May 11, 2013 that for the first time, the citizens of Pakistan went to the ballot box to transfer power from one democratic government to another. The ECP recorded that 55% of Pakistan’s registered voters participated in the polling process on 11th May 2013 – the highest number in recent history by some margin. Given the significance of the milestone and the hopes that it brought, it is perhaps no wonder that tales and controversies surrounding the elections have continued to dog the headlines one year on. The unfortunate aspect of this, however, is that while the political rhetoric rages on, there has been little constructive debate. This is regrettable. If we are to improve our electoral system, the narrative must be directed towards drawing upon our previous experience and building for the future. A large part of this responsibility falls upon the shoulders of the Election Commission of Pakistan (ECP) and the Federal Government and it is their duty to take the lead and strive for improvement in this process. At the same time, the role of the Opposition is to ensure that the debate is focused on making specific improvements in the electoral system and to maintain the pressure on the Federal Government and ECP implement them well ahead of the next general elections. I assisted the former Chief Election Commissioner from July 2012 to July 2013. During this time, I acquired invaluable insight, information and experience into the workings of our electoral system and draw upon my experience in this study. I will always defend the sanctity of the 2013 General Elections and fearlessly maintain that it was a momentous occasion for our country. That said, there are undoubtedly improvements that can be made. This requires gradual and conscientious steps. Improvements are required to be proposed, debated and tested before implementation. The writer is a lawyer at Ebrahim Hosain. He was an advisor to Justice (retd.) Fakhruddin G Ebrahim during his tenure as CEC from July 2012 to July 2013.

Well in advance of the general elections in May 2013, the ECP published the Final Electoral Rolls 2013 (FER), which was, quite simply, a comprehensive list of all eligible voters in Pakistan and their place of voting. Section 6 of ERA provides that a resident can exercise his vote wherever he is a resident. Section 7 goes on to clarify that a voter will be deemed to be a resident wherever he ordinarily resides, owns immovable property and if he owns more than one property, he has the right to choose the electoral area from which he wants to vote. This proved to be hugely problematic, for it required the ECP to physically verify that each and every voter was actually residing in a certain area or that a voter owned a house elsewhere. The sheer magnitude of this exercise required the ECP to appoint employees of local governments to painstakingly verify whether a given person lived in a certain house or not. There was thus a critical human element to this entire process. Certain parties alleged that the local government employees in Karachi that were appointed for this task were serving political interests and transferred unfavorable votes outside the city or within the city by forging or forcefully obtaining signatures. Due to this reason, Jamaat-e-Islami (JI) and Pakistan Tehreek-e-Insaf (PTI) filed a petition in the Supreme Court of Pakistan challenging the FER in Karachi on the ground that a number of residents had been illegally displaced in the FER to other localities within and outside the city, thereby disenfranchising them. In November 2013, the Supreme Court directed the ECP to re-verify the FER for Karachi with the assistance of the armed forces. Karachi is a city of approximately 20 million residents and the order of the Supreme Court required the ECP to verify the FER by going door-to-door through the entire city. The only difference this time was that the ECP was to call upon the Pakistan Army to “provide assistance”, presumably in an effort to ensure that the exercise was done fairly and free of any mischief. Given that the prime responsibility of the Pakistan Army is to defend Pakistan from an external threat, it was entirely unreasonable to expect army personnel to accompany ECP staff and verify the residents of each household in Karachi. This predictable failing led to further protests by political parties in Karachi and a rejection of the FER for the second time. It needs to be remembered that Pakistan roughly has a population of 180 million – the suggestion that the ECP should verify each and every household is nothing short of absurd. The solution to this is quite simple: voters should simply be registered in the FER at the present address which appears on their CNIC issued by NADRA. The advantage of this is primarily three-fold: There is no possibility of transferring the voting place of a voter in the FER for political gain prior to the general elections On the assumption that the CNIC actually reflect a person’s correct present address, voters are voting for a representative in their own constituency A voter can always correct the present address in his CNIC through NADRA rather than a convoluted process through the ECP.

Some of the lasting images of the 2013 general elections were those of endless queues in the scorching sun, teenage boys threatening voters outside polling stations and videos of human rigging machines mechanically stamping ballot papers. The ECP cannot defend these allegations. To date, election tribunals are hearing some of these electoral disputes and one expects that the results will be declared to be void wherever there is evidence of rigging. One week after 11th May 2013, the ECP had the opportunity to put things in right in NA-250 due to the earlier suspension of polling at 43 polling stations. Thus, foolproof measures were adopted to ensure that such events do not take place again. Presiding officers and polling staff were transported from Balochistan and Interior Sindh to ensure impartiality. Simultaneously, the Pakistan Army assured the presence of army officers inside the polling stations. These measures led to a hugely successful and peaceful by-election on 19th May 2013. Part of this was due to the presence of at least 30-40 armed personnel manning each polling station. The only reason this was possible was that polling was conducted in only 43 polling stations on 19th May 2013. Such deployment is downright impossible when elections are held in approximately 69,000 polling stations throughout the country. It will also be a logistical nightmare if an effort is made to transport polling staff from one province to another to ensure impartiality all across Pakistan. This is admittedly only anecdotal evidence to prove that a smaller election will always be fairer than a larger one. That said, logic dictates that if all of the ECP’s resources are concentrated in one area at a given time rather than spread over the entire country, the likelihood of success is that much higher. Thus, one plausible alternative is to conduct elections for each province separately. In 2014, India held its 16th general elections over a period of six weeks to vote for their Parliamentarians. The polling was done in nine phases. Whereas there were obviously a number of disputes pertaining to some of these elections, the complete and utter disregard for fairness that Pakistan suffered in some constituencies in 2013 was nowhere to be found. Needless to say, this proposal is not without its drawbacks. One major source of concern is that an earlier elected government in one province may use its clout to influence the elections in another. It will also mean that our National Assembly will not be formed for a number of weeks until polling is conducted throughout the country. It will also undoubtedly encourage horse-trading. All these issues will inevitably cause some instability and uncertainty. There are however ways and means to guard against such concerns. For instance, given that general elections in Pakistan are now conducted under a Caretaker Government in the centre and in all the provinces, perhaps one possibility is to give the Caretaker Government an extended term, right until the last election results are announced. More importantly, from a practical point of view, controlling political parties and government officials is bound to be easier than an infinite number of criminals bent upon harassing voters, creating violence and jeopardising the sanctity of the electoral process.

Prior to the 2013 general elections in Pakistan, there was a very public and widespread effort to ensure that the elections bring a group of honest, hardworking and effective Parliamentarians to our Assemblies. A portion of this can perhaps be attributed to Dr Tahir-ul-Qadri, who had come from Canada to Pakistan in late 2012 to ostensibly spearhead a campaign for this purpose. Whatever the motive of Qadri and notwithstanding his limited success to stir an effective public movement, the need to elect honest politicians with clean track records became a national obsession following the media’s coverage of his campaign. The scrutiny of candidates is conducted by Returning Officers appointed by the ECP under Section 7 of ROPA. For the 2013 general elections, the ECP appointed sitting District Judges as Returning Officers throughout the country on the demand of the political parties. This was done in an attempt to ensure impartiality through the entire process. Under Section 14 of ROPA, Returning Officers may reject a nomination paper inter alia if “a candidate is not qualified to be elected as a member” or if a candidate makes a false statement in his nomination form. These provisions proved to be a Damocles sword in the scrutiny process leading up to the 2013 general elections in light of the qualifications for Parliamentarians listed in the Constitution. Article 62 of the Constitution specifies the qualifications that a prospective Parliamentarian must meet before he can be elected to the National or Provincial Assemblies in Pakistan whereas Article 63 lists the disqualifications. In amongst this list are a number of vague, lofty and unenforceable qualifications that proved extremely problematic in 2013. Article 62(1)(d) states that a candidate shall be “of good character and is not commonly known as one who violates Islamic Injunctions.” Article 62(1)(e) of the Constitution provides that a candidate must be one who has “adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins.” Article 62(1)(f) requires a candidate to be “sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.” Shortly before the commencement of the scrutiny period in April 2013, the then Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, also weighed into the public’s demand for clean and honest politicians and reinforced the message to the Returning Officers to ensure that the scrutiny process is stringent and effective. It is arguable that this did not merely amount to a symbolic gesture, for the Returning Officers were subordinate Judges and the Chief Justice is very much their chief. Thrust into the limelight and emboldened by public sentiment, the District Judges in their capacity as Returning Officers turned the scrutiny period into a farce. Candidates were humiliated and ridiculed in front of live cameras. Nomination papers of some of Pakistan’s most distinguished politicians were rejected. The Returning Officers asked some of the most absurd questions: How many wives do you have, and how many nights do you spend with each of them? Do you believe in honeymoon? Have you been circumcised properly? Have you stood in front of a girls college ever in your life? Have you ever seen any censored movie? Have you ever eaten pork? The scrutiny process and Returning Officers quite rightly received serious criticism due to their conduct. The Lahore High Court finally put things in place after a number of days of the scrutiny circus when it passed an order restraining the Returning Officers from embarking upon a subjective inquisition by asking random and intrusive questions. In doing so, the Lahore High Court stressed that “the real and unforgiving test of the candidate is yet to come, in the court of the people of Pakistan in the national elections and, therefore, the RO must not over step the law and exceed his limits, lest the scrutiny appears to be a witch-hunt, tarnishing the neutrality and independence of the judiciary…” This leads us to an important consideration. How effective is the scrutiny process and what is the purpose of the qualifications and disqualifications listed in Articles 62 and 63 of the Constitution? While it is difficult to argue against the requirement that only honest politicians should represent the people of Pakistan in our Assemblies, the subjective elements in Articles 62 and 63 of the Constitution inevitably lead to questions such as those raised by the Returning Officers leading up to the 2013 general elections. Ideally, Parliament should have a serious and meaningful debate in relation to the scope and utility of Articles 62 and 63 of the Constitution. After all, it is possible to argue that having qualifications and disqualifications for candidates is in itself anti-democratic, for the electorate should be able to vote for whosoever it pleases, whether he be a criminal, defaulter or dishonest. However, given the endless national obsession for new, clean and honest politicians, it is highly unlikely that anything of the sort will take place. In these circumstances, it is a relief that the High Courts in Pakistan have now laid down certain judicial principles so that Returning Officers do not repeat their conduct in 2013. However, to ensure certainty and clarity, at the very least, the ECP may consider enacting rules to specify how the scrutiny process should proceed under Section 14 of the ROPA, the powers and limitations of the Returning Officers in this process and the scope and use of Articles 62 and 63 when considering the nominations of candidates.

Shortly before the 2013 general elections, the Supreme Court was hearing two petitions filed a group of expatriate Pakistanis and PTI to implement voting for overseas Pakistanis ahead of the 2013 general elections. Ultimately, the Supreme Court disposed off the petitions directing the ECP to make all possible efforts so the expatriates may also participate in the 2013 general election. This proposal could not however be implemented in 2013 due to paucity of time. That said, there appears to be a general consensus amongst the mainstream political parties that overseas Pakistanis should be allowed to vote in the general elections and therefore this issue deserves serious attention. The 2013 general elections exposed the failures that can plague the sanctity of the poll if effective and foolproof safeguards are not in place. The risk increases manifold with the prospects of overseas voting. There are a number of basic questions: How will the voting take place? Will the host country allow political activity? What measures can be taken to guard against rigging? A taste of the logistical issues begin to surface when one considers the oft-touted option of establishing polling stations in embassies abroad. In such a case, all the election material will have to be securely transported to Pakistani missions across the world well in advance of polling day. This will inevitably entail costs and a substantial amount of risk. Polling stations will have to be staffed with Presiding Officers, polling staff and security personnel, who will have to be specifically trained for this purpose and then sent from Pakistan. Once polling is complete, all the ballot papers will have to be securely transported back to a centralised location for counting and verification. This will need to be done expeditiously so as not to jeopardise the election results in the rest of the country. Bear in mind that this entire exercise will have to be repeated for each polling station established around the world and there are close to 7 million Pakistanis who are residents abroad across several countries. Thus, multiple polling stations may even need to be established in some countries in which Pakistanis are residents in sizeable numbers. Then there is also the question as to what numbers of overseas Pakistanis are required in a given country to justify establishing a polling station as the ECP cannot be reasonably expected to establish polling stations in each country where Pakistanis reside. In addition to these procedural issues, there is perhaps another fundamental question - should Pakistanis living abroad have the right to vote in a constituency in which they do not presently reside? It is arguable that overseas Pakistanis themselves form a separate constituency and should therefore have their own representation in the National Assembly to look after their interests. A special committee was constituted by the ECP to consider these very questions as far back as 2009. In 2011, the ECP arrived at the conclusion that the only viable way to give overseas Pakistanis a right to vote was through a postal ballot. Given the passing of the Supreme Court order mentioned above as well as the renewed interest on the subject, it appears reasonable that the ECP may give serious consideration to this issue once again. In this regard, one needs to be conscious of the fact that the ECP is entrusted to ensure free and fair elections under the Constitution and has the expertise to do so. Thus, it is only after the ECP is entirely confident that it has arrived at a fair and secure mechanism to implement this exercise that this proposal may move forward in Parliament for necessary debate and legislation. 5. Formation of the ECP

Under the Constitution, the CEC may only be a person who is, or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified to be a Judge of the Supreme Court whereas the Members of the ECP must each be a retired High Court Judge from each province. When Justice (Retd.) Fakhruddin G. Ebrahim was appointed the CEC in July 2013, his appointment was met with widespread approval. In hindsight, this was indeed a momentous occasion. Political parties in Pakistan rarely agree on issues when faced with competing interests. Yet in this instance, the Pakistani Peoples Party (“PPP”) and the Pakistan Muslim League-Nawaz (PML-N) remarkably agreed on one person to oversee a process which was going to determine their political future for the next five years. Thus, Justice (Retd.) Fakhruddin G. Ebrahim had credibility across the political spectrum, which the CEC and indeed, the Members of the ECP, necessarily must possess. That said, there are a number of other attributes that are required from the CEC and Members of the ECP. It is important to appreciate that conducting the general elections is largely an administrative task. There are a plethora of tasks that need to be meticulously researched, planned, tested and implemented. Take for instance, the responsibility of establishing polling stations throughout the country to allow the electorate to conveniently cast their votes. The ECP is required to identify government buildings in each of the 272 constituencies in Pakistan. The government buildings have to be sufficiently large to accommodate voters, accessible, connected to the electricity grid, located in areas which are relatively free from political interference and be within two kilometres of its closest polling station. The 2013 general elections saw the ECP establish 69,801 polling stations. Thus, together with the Returning Officers, the ECP is required to examine the suitability of over 69,000 buildings across the length and breadth of the country. This exercise, like most others in the election process, requires a great amount of organisation, planning, experience and cooperation with government departments. Admittedly, there are also judicial functions carried out by the CEC and Members of the ECP. However, the judicial role is undeniably limited. It is worth mentioning that the CEC and the Members of the ECP do not adjudicate upon the two most significant judicial functions in the election process, i.e., deciding the fate of a candidate’s nomination papers and election disputes, which are performed by either Returning Officers, sitting High Court Judges or retired Judges under ROPA. In these circumstances, the qualification in the Constitution that the CEC and the Members of the ECP can only be selected from persons with a judicial background needs to be revisited. There is no such restriction in any democracy in the South Asian region. Removing such a qualification from Article 218 of the Constitution will immediately open a much larger pool of eminent persons, who may be selected in these key constitutional positions. Additionally and more importantly, such a change will allow the possibility of appointing more qualified and suitable individuals to these positions notwithstanding whether they have a judicial background or not. 6. Electronic voting Most people in Pakistan are fairly

Most people in Pakistan are fairly convinced that the only answer to prevent wide scale rigging on polling day is electronic voting. Indeed, the successful implementation of electronic voting may ultimately prove to be the tipping point in our election process. However, this answer is far too simplistic. Before electronic voting becomes a reality, there are a number of considerations that require serious attention. Electronic Voting Machines (EVMs) are utilised for polling in India. This is a commendable feat given the sheer scale of elections in India. However, the implementation of EVMs in India has not been without its skeptics. In 2010, a group of professors, scientists, students and professionals across India, the United States of America and the Netherlands authored a study examining the security features of the EVMs used in India. India had previously used EVMs that are classified as paperless direct-recording electronic (“DRE”) voting machines. These DREs do not leave a paper trail and thus once a voter presses a button to vote for a candidate, there is no way to verify the vote except the reading on the EVM. After examining the features of the EVM, the authors of the study concluded that “India’s EVMs do not provide transparency, so voters and election officials have no reason to be confident that the machines are behaving honestly.” These are some of the concerns raised by the experts at the ECP when the proposal to implement electronic voting has been debated. Two presentations were made to the ECP during the tenure of the former CEC and quite apart from the paucity of time to implement the EVMs ahead of the 2013 general elections, there were several other issues that will need to be addressed in the future. Firstly, there is the often publicised issue of literacy and whether our electorate is capable of using EVMs. There is absolutely no question however that the ECP will have to conduct extensive training over many years to educate the electorate how to use an EVM. The time and effort needed in this regard can be gauged from the fact that EVMs were first developed in India in the 1980s and adopted nationwide for the time first time in 2004. This is a long, drawn out process and will only succeed if done with a suitable amount of testing and training. Secondly, and another important issue raised by the ECP has been that of credibility and security. Manufacturers of EVMs are not responsible for conducting free and fair elections in Pakistan. They are companies who manufacture and supply EVMs for profit and the Government of Pakistan has no control over them. In India, EVMs are manufactured by two public sector companies. Perhaps, Pakistan needs to follow a similar example to ensure a level of accountability. This also leads us to the all-important question of security. Can the manufacturer and the ECP guarantee that the EVMs are completely secure? It is worth recalling that the ECP website was hacked in 2013 shortly before the general elections. Hundreds of thousands of EVMs across the country is an entirely different proposition altogether. Thirdly, there is the issue of the infrastructure of our polling stations. EVMs require an uninterrupted supply of electricity. Many of the 69,000 polling stations established by the ECP in 2013 were located in remote areas which have no access to electricity supply lines. Fourthly, Pakistanis may recall that the typical instance of rigging in the 2013 general elections was that a polling station was ransacked by criminals, voters and polling staff were threatened and ballot boxes were stuffed. If Pakistan is unable to effectively deter such criminal behaviour on polling day, the successful implementation of EVMs will make no difference in any case. There is unarguably a compelling case for introducing the use of EVMs in Pakistan. However, one needs to appreciate that there are also significant risks associated with such a drastic step if the proper measures are not in place. The ECP needs to make a serious, coherent and long-term strategy to work towards this tall order. 7. Election expenses

Section 49 of ROPA places restrictions on the amount of expenses that a candidate may incur for his election campaign. A candidate for a National Assembly is only permitted to incur Rs1.5 million whereas the expense for a candidate for the Provincial Assembly is capped at Rs1 million. On the face of it, these appear fair, just and desirable provisions. One can certainly laud the Parliament’s intention to ensure that all candidates contest elections on a level playing field, regardless of their financial background. This is perhaps all the more important in Pakistan, where political and financial muscle has historically played a vital role on the outcome of elections. In reality however, the implementation of these provisions is much more complex. It is all well having well-meaning provisions in the statute books, but they should also be enforceable. The restriction wholly fails in this respect. Section 49 of ROPA provides that election expense incurred by any person on behalf of a candidate shall be deemed to be election expenditure of the candidate for any other item whatsoever. Thus, the ECP is legally required to monitor every expense incurred by any person in relation to the election campaign of each candidate. The mechanism for this specified in ROPA is that each successful candidate is required to submit a statement of expenses along with copies of all bills, receipts and his personal affidavit 30 days after his election. After observing the futility of controlling elections expenses through this method however, the Supreme Court directed the ECP to monitor the election expense of each candidate as follows: Establish monitoring cells Hold weekly meeting with candidates Conduct random inspections Ensure that candidates only transact with entities having valid National Tax Numbers (“NTNs”). The impracticality of the Supreme Court’s directions can be gauged from the fact that there were 15,629 contesting candidates in 2013 general elections spread across 272 constituencies, all the way from Badin in Sindh to Bannu in Khyber Pakhtunkhwa. It is completely unreasonable to expect the ECP to undertake these tasks for such a large number of candidates imminently before polling day. Moreover, the inability of the ECP to effectively carry out these directions inevitably leads to a slipshod exercise, where some candidates face the full wrath of the restrictions whereas others manage to escape it. Another relevant consideration, which was raised by the ECP staff prior to the 2013 general elections, was that candidates frequently conduct transactions with persons who do not possess NTNs. This makes it impossible to verify the accuracy of a certain election expense. The reason for this is not necessarily to deviously circumvent the restriction on election expenses. Some candidates are left with no option but to transact with unregistered businessmen in certain constituencies. Anyone living in Pakistan will appreciate that vendors, especially in remote localities, often conduct business outside the net of the tax authorities. Therefore, it is not always possible for candidates to find persons with NTNs to provide, say, tents, chairs or microphones, for an election rally. The ECP staff is then faced with the impossible option of whether to disallow a candidate to conduct an election rally, which is arguably a violation of his fundamental rights, or allow a candidate to incur an expense, which it cannot verify. The inability of the ECP to enforce these provisions leads to criticism of the ECP’s failure to perform its legal duties properly and unfairly casts doubts over its competence and integrity. It also makes a mockery of the legal restriction in ROPA. For example, media outlets informed the ECP that one month prior to polling day in the previous general elections, PTI had spent over Rs58 million, whereas PML-N and PPP had spent approximately Rs20 million and Rs5 million respectively on their electronic media campaigns. These concerns unfairly burden and inevitably damage the ECP’s reputation. Even though removing the restrictions on election expenses from ROPA may prove to be a largely unpopular move, Parliamentarians need to give attention to this issue. Even if the restrictions are to be preserved in the statute, the ECP should be given a clear, coherent and realistic mandate to perform and Parliament needs to establish a forum to continuously review the sums specified in Section 49(2) of ROPA so as to ensure that the law can be effectively implemented. 8. Appointment and accountability of District Returning Officers and Returning Officers

District Returning Officers (“DRO”) and Returning Officers (“RO”) became household names in the 2013 general elections in Pakistan. This is no coincidence and reflects the significance and variety of functions that such officers perform in the election process. DROs and ROs are inter alia responsible for identifying polling stations, appointing polling staff, supplying electoral rolls to the polling staff, scrutinising nomination papers, consolidating election results from each polling station and declaring the successful candidate. The only difference between the two officers is that while DROs are responsible for the conduct of elections in each district, ROs are responsible for their constituencies. It is therefore fair to say that DROs and ROs are the lynchpin of the election process in Pakistan. Given this central role, there was a great deal of discussion within the ECP and amongst political parties about who the DROs and ROs were to be in the lead up to the 2013 general elections. Section 7 of ROPA states that DROs and ROs are to be appointed by the ECP from “…amongst the officers of the Federal Government, Provincial Governments, corporations controlled by any such Government and local authorities.” Notwithstanding this legal requirement, in 2013 all political parties were in agreement that DROs and ROs should be drawn from the members of Judiciary to ensure impartiality. The experience in 2013 has shown that appointing DROs and ROs from the Judiciary does not guarantee fairness or strict application of the law. One additional aspect to examine is the influence that the superior Judiciary exercises over the DROs and ROs. If the ROs and DROs are Judges from the Subordinate Judiciary, it is in their personal interest to please their supervisors, who are High Court and Supreme Court Judges, rather than members of the ECP. This contradiction leads to uncertainty and questions over leadership. ROs in the United Kingdom and India are also appointed from Government and local authorities. However, Pakistan has a unique predicament in that employees of the Federal or Provincial Government in Pakistan are often political appointees or have political affiliations. This has been a constant source of trouble, which was highlighted in Karachi in the previous general elections. Shortly before the general elections, the JI raised grievances that a vast portion of the polling staff appointed in Karachi who were drawn from the Karachi Water and Sewerage Board, a government body, were affiliated with the Muttahida Qaumi Movement (MQM). The ECP directed all DROs and ROs to counter this difficulty by appointing as many polling staff as possible from the Federal Government and to ensure that all Presiding Officers were senior government officials. These complexities pose a serious challenge to the ECP. If DROs, ROs or polling staff are incapable or unwilling to perform their election duties free of any influence, the entire election process may be jeopardised. Indeed, this issue has been a central theme taken by political parties to discredit the 2013 election results in their entirety. One solution offered by political parties is that DROs and ROs should face criminal prosecution if they fail to conduct their responsibilities properly. The rationale behind this suggestion appears to be that the threat of a sanction will deter such officers from acting unlawfully. The obvious hurdle in this proposal however is that in the recent past, judges themselves have been appointed as DROs and ROs. It is absurd to even consider that a sitting Judge will ever face a criminal prosecution in relation to his election duties. Therefore, this proposal will only be enforceable if there is a specific bar from appointing Judges as DROs and ROs. Another important consideration is that there are only a maximum of 272 ROs and even fewer DROs required to be appointed for election duty throughout Pakistan. That is not a large number considering the adult population of the country. It is thus perhaps worthwhile to consider removing the restriction in ROPA that DROs and ROs can only be appointed from government departments. This will allow any person, whether working in the public or private sector, who satisfies a given criteria specified by the ECP in terms of experience, credibility and competence, to be appointed to perform these critical functions. 9. Timelines

The ECP, its partners in the election process and the judiciary come under immense pressure to complete a substantial number of tasks within a very stringent time frame ahead of polling day. Stakeholders fail to appreciate the lengths that these institutions have to go to in order to successfully complete these assignments and just how catastrophic failure in this respect can be. To begin with, the ECP is required to notify the election schedule within 30 days of the announcement of the date for polls by the President under Section 11 of ROPA. Thereafter, Section 11 of ROPA requires compliance with a timeline, which was translated as follows in 2013: After the ECP notified its election schedule on 23rd March, the last date for filing nomination papers for the candidates was 30th March The scrutiny process concluded on 6th April Appeals against the decisions in the scrutiny process were required to be filed by 10th April The appeals were to be decided by 17th April The last date for withdrawals was 18th April The final list of candidates was to be published by the ECP on 19th April A total of 24,094 nomination forms were filed by candidates for the 2013 general elections, which was the highest witnessed in Pakistan by some distance. That means on average the ECP, together with the ROs received and scrutinised 3,442 nomination forms each day during the scrutiny period. Thereafter, Pakistan’s overburdened and traditionally languid judicial system had to consider arguments, decide appeals and write judgments within seven days for each appeal filed against the decision of the ROs. There were a total of 1,649 appeals filed by candidates against the decisions of the ROs, and therefore, on average, the four High Courts in Pakistan had to cumulatively decide 235 appeals, and each High Court close to 60 appeals, each day. Given the sheer impracticality of meeting this disposal rate, it was no surprise that despite their best efforts, the High Courts were deciding appeals after the expiry of the deadline specified in Section 11 of ROPA. This further burdened the ECP to expedite the publication of the final list of candidates and printing of ballot papers. The ECP engaged two government organisations, the Printing Corporation of Pakistan (“PCP”) and the Pakistan Printing Press (Pakistan Press), to print the ballot papers for polling day. The ECP published the final list of candidates on 19th April, 2013 and therefore, as the ECP also required a number of days to transport the ballot papers to all the polling stations across the country, the printing organisations had approximately two weeks to print all the ballot papers. At one stage, the PCP and Pakistan Press expressed their inability to complete this task and suggested that private contractors be engaged to assist them. Due to the security, sensitivity and confidentiality required for printing ballot papers, the ECP could not afford to take this risk and the only alternative was for the ECP to take the drastic step of changing the date for polling day. However, with the extensive assistance of the Pakistan Army, which used its aircraft to swiftly transport ballot papers to the more remote areas of the country, and with the PCP and Pakistan Press working overtime, these challenging deadlines were fortunately met. Placing such acute demands on the ECP and other institutions involved in the election process is unfair and unrealistic. The previous general elections saw an unprecedented number of candidates and the increasing interest may become a trend for the foreseeable future with further democratic progress. In such circumstances, the timelines in Section 11 of ROPA certainly require a reassessment. This is more so the case in the event that Parliament desires to retain and make the scrutiny process more effective. 10. Supplementary list on the FER

In 2002, the government of General (Retd.) Pervez Musharraf passed the Conduct of General Elections Order 2002 (“the 2002 Order”), which stated that the elections for members of the National Assembly and the Provincial Assemblies shall be on the basis of a joint electorate. However, Section 7C of the 2002 Order provides that if an objection is taken against a voter that he is not a Muslim and the voter subsequently refuses to confirm that he believes in the “…absolute and unqualified finality of the Prophethood of Muhammad…”, his name will be deleted from the joint electoral rolls and be placed in a supplementary list. Thus, although a non-Muslim may vote from the joint electorate, his name may potentially be placed in a supplementary list in the FER. The FER does not specify the religion of any person. It only states the name, father’s name, CNIC number, age and the address of the voter. These details of each voter simply appear below one another, regardless of which religion a voter may belong to. Therefore, the only way of identifying whether a particular voter is a non-Muslim is by the name. In such an instance, the non-Muslim voter’s name can potentially be removed from the FER and placed in the supplementary voter list by following the procedure in Section 7C of the 2002 Order. This procedure requires: A person to raise an objection that a voter is non-Muslim The said voter’s refusal to sign a declaration confirming his belief in the finality of Prophethood. It is important to bear in mind that the ECP cannot remove a voter’s name from the FER and place it in the supplementary list on its own accord without the satisfaction of these requirements. Unfortunately however, the ECP did just that in 2007 and members of the Ahmadi community exclusively find themselves in a supplementary list in the FER. This clearly amounts to discrimination, for no other persons belonging to any other religious group are placed in the supplementary list. There is also a complaint in the Supreme Court pending in relation to this issue. However, to date the Supreme Court has not directed the ECP to place voters belonging to the Ahmadi community back in the FER along with other voters of different faiths. There is no complexity in relation to this issue. There is no need for legal amendments or Supreme Court judgments. The ECP merely needs to reverse its decision of 2007. This would not only reflect a step towards greater equality and respect for basic human rights, but is also mandated by law and the Constitution. 11. None-of-the-above (NOTA) option on the Ballot paper

Many people consider that having a NOTA option on the ballot paper is a voter’s fundamental right. In Pakistan, where voters argue that they are often compelled to vote for the lesser of evils, this is perhaps particularly significant. The ECP considered whether to include a NOTA option in the ballot paper for the 2013 general elections. However, given the paucity of time to examine the issue at length and preoccupation with more pressing issues, little headway was made. The major concern raised against this step during the course of debate however was the possibility of having a majority number of NOTA votes. What if the electorate in a constituency voted overwhelmingly in favour of NOTA? The natural consequence of such a vote would be to conduct elections in that constituency again. However, there is always the possibility that another election may well bring a similar result once again. This problem will become even more acute if NOTA wins the election in a number of constituencies, in which case the ECP would have to conduct elections twice over in multiple places, making the entire original exercise redundant. Whether these are realistic concerns is something which needs to be assessed by the ECP. Whatever the outcome of that debate, it is undeniably consistent with democratic norms to provide for a NOTA option on the ballot paper. After all, elections should allow a voter to vote or not to vote for anyone. This will also defeat the arguments of citizens who refuse to cast votes on the ground that there is no viable option and also perhaps ultimately encourage candidates to serve the electorate better, knowing full well that voters now have the option to vote for NOTA. These considerations have led a number of countries to provide a NOTA option on the ballot paper, such as France, Spain and even Bangladesh. In 2013, the Supreme Court of India ordered the Election Commission of India (ECI) that it should make necessary provision for a NOTA option in the EVMs. It is interesting to note that only 1.1 per cent of the Indian electorate voted for NOTA in the 2014 general elections when the option was made available for the first time. The legalities surrounding this proposal require thoughtful consideration. Foremost, the stakeholders need to consider the extreme scenario - how to deal with an election result where most votes are cast in favour of NOTA. The Indian example is enlightening and perhaps exposes India’s failure to fully embrace the NOTA initiative. Although the NOTA option was provided in the EVMs for the 2014 Indian general elections, the ECI clarified that even if NOTA had the highest number of votes cast in its favour, the candidate securing the highest number of votes would still be declared elected. This renders the entire exercise superficial and essentially makes the NOTA option toothless. Perhaps this is a starting point. However, if the ECP and the Federal Government decide to adopt a more meaningful approach, the NOTA option will undoubtedly strengthen Pakistan’s democratic credentials in the long term and empower the electorate.

The 2013 general elections in Pakistan witnessed an unprecedented number of candidates. Additionally, several candidates filed their nomination forms in multiple constituencies. Consequently, the number of nomination forms which required scrutiny was exceptionally high. Whereas it is heartening to see increased participation in the election process, the right to simultaneously contest elections in different constituencies is a matter which requires debate. One of the recommendations in the Final Report of the European Union Election Observation Mission for Pakistan was that “Candidates be limited to running in only one constituency in any election, for clarity to voters and to remove the need for subsequent by-elections.” The ECP had to conduct by-elections in 41 constituencies only three months after the 2013 general elections due to the number of successful candidates who won elections in multiple constituencies. Not only does this place further demands on the ECP to organise and administer a fairly extensive election for the second time within a short time frame, but it also unnecessarily burdens the public exchequer. It is noteworthy that the ECP’s proposed budget for the 2013 general elections was approximately Rs6 billion for all 272 constituencies; it is thus safe to assume that the repeated exercise for 41 constituencies would have also entailed substantial expenses. In so far as the ECP is concerned, it requires training and appointing polling staff, securing polling stations, receiving and scrutinising nominations forms, printing and transporting ballot papers and adopting security measures in coordination with government departments to ensure a free and fair election all over again. The second concern in this respect is that if by-elections are required in a large number of constituencies and the result of the general elections does not allow for a clear majority in the assemblies, by-elections for vacated seats will delay the formation of a government and prolong political uncertainty. This will also extend the electoral cycle by a number of months, which will inevitably cause inconvenience and disturbance to the general public due to a tense political climate. Third, when candidates file nomination forms in different constituencies, it can potentially lead to contradictory decisions by the ROs or the High Courts. Take for example the case of General (Retd.) Pervez Musharraf in the 2013 general elections; he filed nomination papers in four constituencies, Karachi (NA-250), Islamabad (NA-48), Chitral (NA-32) and Kasur (NA-139) and whereas the ROs in Karachi, Islamabad and Kasur rejected his nomination form on the ground that he did not meet the qualifications under Article 62 of the Constitution, the RO in Chitral accepted his nomination. This rather peculiar contradiction meant that while General (Retd.) Musharraf was qualified to contest elections in one part of Pakistan, he had been disqualified to contest elections in others. This practice will encourage candidates to pick and choose constituencies from where to contest elections depending on whether they expect a favorable outcome from a particular RO. Fourth, it is also arguable that a candidate will serve the electorate better if he is restricted to only contest elections in one constituency for there will be a sense of commitment and loyalty. Against this, there is the obvious argument that curtailing a candidate’s right to contest elections to a single constituency is a violation of his fundamental right to engage in political activity. Politicians may well challenge any such restriction given that it has the potential of seriously affecting their political prospects. This is a moot point for now. If and when Parliament decides to take the step by placing a restriction in ROPA that a candidate may only file nomination papers in one constituency, it will be for Pakistan’s Judiciary to decide the legality of such measures. The writer is a lawyer at Ebrahim Hosain. He was an advisor to Justice (retd.) Fakhruddin G Ebrahim during his tenure as CEC from July 2012 to July 2013.