Draft Elections Bill 2017 does not introduce structural reforms: Abdul Quayyum Khan Kundi
All parties talk about vagueness of Article 62/63 but fail to amend it: Abdul Quayyum Khan Kundi
Autocratic parties can’t strengthen democracy in the country: Abdul Quayyum Khan Kundi
February 23, 2017, Karachi: Former member of Chairman Advisory Committee and Central Tarbiyati Council Abdul Quayyum Khan Kundi held a press conference at Insaf House Karachi to present electoral reforms proposals. Speaking on the occasion he said that Pakistan has a historic opportunity to introduce electoral reforms so that real democracy can be introduced in the country. He said that all elected offices should be filled through direct elections as party lists and ticket process is not based on merit and capability. He said that autocratic parties prefer those loyal to party heads rather than to the party. Pointing towards undemocratic practices in political parties Mr. Kundi stated that our proposals include the introduction of democracy inside political parties and transparency in the award of tickets.
Mr. Kundi informed that the proposal package is developed after looking at the suggestions of PILDAT, FAFEN. National Democratic Foundation, and Pakistan Visionary Forum as well as consultation with academics and experts. He said that PTI members of the parliamentary committee were informed about the development of these proposals and we expect that they will adopt it. He said that copies of these proposals will be delivered to members of the parliamentary committee on electoral reforms and other political parties as well. He said that contacts are established with PPP, Pakistan Kissan Etihad, Pakistan Freedom Movement and Jamat-e-Islami to seek support for these proposals. He said that we have a team that will approach political parties in all four provinces to gain support for meaningful electoral reforms.
Draft Proposals for Electoral Reforms
Sanctity of the ballot has to be achieved for democracy to function both within the parties and the country for which major electoral reforms are essential.
Constitution of Pakistan:
Article 51 (6)(a) states that “the constituencies for general seats shall be single member territorial constituencies and the member to fill such seats shall be elected by direct and free vote in accordance with law;
Comment: It has been the experience that first-past-the-post system has allowed people to become a member of the assembly by securing just 13 to 15% of the registered vote. This has produced a weakness of the democratic system as people with resources and influence can easily cross this barrier. This very low number of voters mandate also undermines the legitimacy of the parliament as the members do not truly represent the majority. Territorial constituencies have resulted in control of politics by a handful of families using all possible means of oppression of people including control of government functions; development agenda; and economic resources.
Proposal: Constitution of Pakistan is silent about how parliamentarians should be elected. In other words, it is not the constitution that defines the method of election which in a way provides us an opportunity to move from first-past-the-post (FPTP) election system. FPTP is also rejected by the majority of states and is only functional in a handful of countries because of its failure to deliver a majority mandate. Secondly, the legislative assembly at the federal level is meant to serve the whole nation rather than a territorial constituency. Based on these arguments we propose two options:
Option I (preferred): A mixed system should be adopted to fill general and reserve seats in the national assembly. Half of the seats should be filled through constituency level contest while the other half should be filled through a proportional representation. Further safeguards should be incorporated including that a party should secure minimum 5% votes at the national level as well as in each province. It has to be also ensured that lists submitted to ECP by each party are based on merit and capability rather than nepotism and cronyism.
Option II: Territorial constituencies are kept but elections contested based on the clear majority by requiring a runoff election if a candidate fails to secure 50%+1 vote in the first round. None of the above (NOTA) option should also be included on the ballot papers and if this option secures at least 35% of the votes then the election called off to be held again barring all those candidates that were initially nominated by their parties for that particular election.
Article 51 (6) (d) members to the seats reserved for women which are allocated to a Province under clause (3) shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly:
Provided that for the purpose of this paragraph the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates; and
Comment: The experience so far is that wives, sisters and other relatives of party officials are included on the reserve list for women. Secondly, most political parties do not have women wings that have sufficient authority to prepare lists based on merit and democratic process. This has undermined the voice of women in the assembly which was the main objective when these reserve seats were allocated.
Proposal: Election Commission of Pakistan (ECP) maintains separate electoral rolls for women as well as designate separate polling stations for women. It is logistically possible for ECP to hold a direct vote on women seats. The list of women that secure most votes in the province should become members of the national assembly from that province for the reserved seats.
Article 59. The Senate.—(1) The Senate shall consist of one-hundred and four members, of whom,
(a) fourteen shall be elected by the members of each Provincial Assembly;
(b) eight shall be elected from the Federally Administered Tribal Areas, in such manner as the President may, by Order, prescribe;
(c) two on general seats, and one woman and one technocrat including aalim shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe;
(d) four women shall be elected by the members of each Provincial Assembly;
(e) four technocrats including ulema shall be elected by the members of each Provincial Assembly; and
(f) four non-Muslims, one from each Province, shall be elected by the members of each Provincial Assembly:
Provided that paragraph (f) shall be effective from the next Senate election after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.
(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.
Comment: It is public knowledge that electoral college comprising of provincial assembly members has resulted in trading of votes for monetary benefit. This money based election of senators has resulted in considerable deterioration in the quality of deliberations in Senate to draft laws. Favoritism and nepotism in political parties have also resulted in the nomination of Senate candidates without consideration for merit and capability.
(I) For general seats, direct election method should be applied where top 14 candidates by the number of votes should be declared winners to seats assigned to each province.
(ii) For reserve seats parties should provide an explanation on what basis these candidates were selected and whether any of them are related to party officials. Reserve seats should be assigned to each party based on proportional representation rather than voting of electoral college comprising of members of provincial assembly.
Article 62. Qualifications for membership of Majlis-e-Shoora (Parliament).—(l) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless—
(a) he is a citizen of Pakistan;
(b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any -electoral roll in—
(i) any part of Pakistan, for election to a general seat or a seat reserved for a non-Muslims; and
(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.
(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins;
(f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and
(g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan:
(2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have a good moral reputation.
Comment: This article is subject to a lot of abuse as vague terms have been used to develop criteria for eligible candidates. For instance, Artice 62 (d) stipulates good character but does not explain who will decide a person has good character and what does it mean. It also suggests that a person does not violate Islamic injunctions. What are these injunctions? If someone does not pray five times salat then would it qualify as violating these injunctions? Article 62 (e) is a religious test for a person to be a candidate. This means that a non-Muslim cannot contest on a general seat as he will be disqualified from contesting elections. This creates inequality among citizens. Article 62 (f) is another confusing one. If a person says a glass is half full but her/her opponent says it is half empty then can it be said that one of them is lying. Politics is usually gray in its nature so including such criteria to qualify to become elected member of parliament makes it subject to abuse.
Proposal: Tangible and verifiable criteria should be developed for qualification of candidates. The article should be clearly worded with requirements that are tangible in nature rather than use general terms that have the potential to be abused. Article 62 and 63 should be combined into one so that both qualifications and disqualifications are listed together.
Article 63A: Disqualification on grounds of defection, etc.-(l) If a member of a Parliamentary Party composed of a single political party in a House—
(a) resigns from membership of his political party or joins another Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to—
(i) election of the Prime Minister or the Chief Minister; or
(ii) a vote of confidence or a vote of no-confidence; or
(iii) a Money Bill or a Constitution (Amendment) Bill;
he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned:
Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.
Explanation.- “Party Head” means any person, by whatever name called, declared as such by the Party.
Comments: This article is in clear violation of the democratic spirit and has enabled the establishment of dictatorial powers inside parties. The control of party head on the fate of parliamentary members has also contributed to the prevention of candid debate in the assembly on legislation although the article only talks about three specific events for this purpose. Parliamentarians earn mandate from the people but they are required to be loyal to party heads.
Proposal: The authority of the party head should be replaced with the parliamentary committee of the party proposing the removal of the party parliamentarian to the central executive committee (CEC) of the party. Party CEC should have the final authority to issue the declaration to de-seat the member.
The Draft Elections Bill, 2017
Election Commission: After 18th amendment, a lot of autonomy has been granted to the provinces in terms of managing education and health departments from which most election officials are derived for general elections. It is important that provincial election commissions are set up that work under the Election Commission of Pakistan (ECP). It is important because in the absence of provincial election commissions the management and organization of election is far removed from it as most decisions have to be made locally. As the bill propose administrative autonomy for ECP it is important that provincial election commissions are set up that can work closely with candidates and political parties to ensure free and fair elections. Provincial election commissions should be subordinate bodies to the central election commission but should have sufficient authority to discharge election-related issues especially arising from the management of the elections. Provincial election commissions should also be responsible for conducting provincial assembly elections at a date that may be same or different from the election for the national assembly.
Article 13 (4): The Returning Officer shall also send to the Commission original copies of documents mentioned in subsections (2) and (3) through special messenger or any other swift means of communication including urgent mail service or courier service, as may be directed by the Commission-
Comment: There have been reports in past elections that original documents were mishandled, altered, or destroyed during the process of transmission to the ECP. This fact was also highlighted in the report prepared by the Judicial Commission for election rigging.
Proposal: All election material should be collected and transmitted by military and para-military deployed for the security of election. Their responsibility should end when the material is delivered to ECP for safe storage for the stipulated period of time.
Article 14 (1): The election commission six months before election prepare an action plan including delimiting of constituencies, electoral rolls, enlistment of political parties, allocation of symbols, appointment of election staff, assignment of polling stations, estimated number of ballot papers needed, arrangement of election observers, appointment of appellate and election tribunal, security measures, and monitoring of the progress.
Comments: One of the most common complaints from candidates is that electoral rolls and polling stations are changed without their knowledge at the last minute. This is done in the name of administrative issues but causes question marks raised about the fairness of the election process.
Proposal: The article should clearly mention that electoral rolls finalized maximum six months and minimum three months before elections and not changed thereafter. Certificate copies of these electoral rolls should be provided to candidates upon request and if any changes made after that will void the election in that constituency.
Article 16: Commission to submit an annual report
Comment: As an autonomous body ECP should not be under any influence of federal or provincial governments.
Proposal: Annual reports should be made public and published in all national and regional newspapers as well as on the website of the election commission.
Article 17 to 20: Commission to delimit constituencies
Comment: There is considerable ambiguity in terms of how constituencies are delimited and cause a considerable imbalance among it.
Proposal: Constituency delimitation formula should be clearly defined taking into consideration distribution of votes equally among it as well as being geographic contiguous and culturally homogenous. It should be ensured that difference in registered voters should not be more than 5% between various constituencies in a province. ECP should publish maps and demographic information of each constituency and allow at least 30 days for public comments on it.
Article 22: Power of commission to make amendments, alterations, and modifications in the final list of the constituency.
Comments: It is a common complaint against ECP that it makes arbitrary changes in the election process without widespread dissemination of information. These relate to changes in electoral rolls, polling stations and delimitation of constituencies.
Proposal: No changes should be made in electoral rolls, polling stations and constituency boundaries maximum 6 months or minimum 3 months before the date of the election. We should learn to better manage our state affairs rather than remain chaotic to the last day.
Article 35: Final publication of electoral rolls: & Article 39 (1) No revisions, correction or transfer after constituency called upon to elect-
Comments: Thirty days is too short a period for candidates to be able to campaign effectively in a constituency. We have to keep in mind that a MNA constituency has on average 250,000 to 350,000 registered voters. These are large constituencies and requires extensive work to reach out.
Proposal: No change in the electoral rolls should be allowed six months maximum or three months minimum before the date of the election. Certified copies of electoral rolls should be provided to all candidates after payment of reasonable cost. Candidates should have one month to verify these certified electoral rolls. Any objections raised by them should be taken care off to ensure only legitimate voters are enrolled in the constituency. Once finalized three months before the election date, any changes in the electoral rolls found between the copies with the candidates and ECP staff should be a cause for voiding of polling in that polling station. If more than 15% polling stations have discrepancies in electoral rolls then the whole election should be scrapped automatically.
Article 48: Departure from normal procedure in exceptional circumstances
Comments: This article is prone to abuse and must be revised.
Proposal: It should be clearly defined what is meant by exceptional circumstances and must not be left to open-ended definition. Secondly, candidates should give their consent to accept exceptional circumstances to be valid. This can be done through a majority agreement rather than 100% consensus.
Article 52 (2) Presiding officers should not be in the employment of any candidates.
Comment: This is another area where a lot of controversies arise when a relationship between candidates and election staff is revealed after the elections.
Proposal: It should be made mandatory that Presiding officers should disclose if they have any relations with any of the candidates whether familial, commercial or any other form.
Article 58: Polling stations
Comments: A common complaints against ECP is that polling stations are changed at the last minute. This causes considerable confusion among the volunteers working for the candidates as well as voters.
Proposal: Polling stations should be finalized at least 30 days before the day of the polling. No changes should be made in the polling stations without the consent of the candidates or their representatives. Only exceptional circumstances should cause any change in the polling station. Majority consent should be sufficient to effect that change. ECP has to keep in mind that they serve the interests of candidates and voters rather than the other way around.
Article 59 (2)(d): Nomination of candidates
Comments: Many elected parliamentarians have engaged in businesses that got loans written off as well as many other financial irregularities.
Proposal: It should be certified by the candidate that he or any of the companies in which he or she was a director has not defaulted on any loans or got facilitated through a loan write-off.
Article 62 (2) and (3) are in conflict with each other.
Proposal: If the appeal is delayed by the actions of the appellant then Returning Officer decision should be upheld. But if Appellate Tribunal is using delaying tactics then election has to be delayed until a decision is made on the rejection of nomination papers of a candidate.
Article 103: Party reserve seats:
Comments: One of the most abused aspect of our democratic system is the nomination for reserved seats for women and non-Muslims. Almost all women parliamentarians are relatives of high officials of the political party or MNAs. Reserve seats are used as political bounties.
Proposal: ECP should require political parties to submit a certificate explaining the criteria used for the preparation of the lists. ECP should also require political parties to demonstrate that a process was adopted to ensure the criteria was applied equitably. Parties should also be required to disclose if any person on the list has relations with party officials or MNAs/MPAs. In other words, greater transparency in reserve seats is critical to making these parliamentarians play their desired role. In the absence of it, these reserved seats do not serve any purpose and should be abolished.
Qualifier: We are proposing that direct election should be held for women reserve seats. The above proposal is presented in case direct election is not accepted.
Article 131: Restriction on election expenses
Comments: This is one of the areas where ECP has grossly failed to implement control. ECP seems to lack the capability to properly monitor election expenses and candidates have a vested interest not to report abuse as all of them are engaged in it. Substantial payments are made in the form of cash that cannot be monitored in any way. Friends and sponsors of candidates also make contributions towards expenses of a candidate. According to rough estimates, an MNA candidate spends on average Rs. 15 to 20 million on his/her campaign. This has made it impossible for middle-class candidates to even imagine participating in the political process.
Proposals: All candidates should be required to state on any advertisement material that it has been paid for from the candidate election funds. Many candidates hoist their advertisements on public properties like traffic lights and street lights. These must be stopped and any candidate whose advertisement are found on public property should be asked to remove it at his own expense and failure could result in disqualification from the elections. Article 179(3)(d) covers this aspect but in an ambiguous manner and does not specify what happens if someone violates it.
Article 194: Access to information
Comments: transparency and legitimacy of an election process cannot be ensured unless and until there is access to information.
Proposal: This access should be provided to election monitoring NGOs, media companies that are registered with PEMRA and Print Publication trade associations, registered voters in a constituency, candidates, and political parties.
Article 199 (f) Foreign aid to political parties
Comments: Overseas Pakistanis are always concerned about the progress of Pakistan and want to play their role in the nation building process.
Proposal: Political parties should be allowed to seek donations from overseas Pakistanis but no funding should be sought from any non-Pakistani entity.
Article 200: Constitution of political parties
Comments: Most political parties do not operate as per their constitution and it is the main reason they have turned into dictatorships. Members are not empowered and resourceful enough to challenge party leadership about violation of the constitution.
Proposal: In article 202 (1) there should be a requirement that constitution should provide details about how to initiate no-confidence motion against party office bearers. ECP should be the regulatory/supervisory/monitoring/arbitration authority that ensures parties are operating as per their party constitution. ECP should be empowered to receive petitions from party members about violations of party constitutions. Party office holders should be required to submit an annual certification that all decisions have been made as per party constitution. Parties should be required to submit their intra-party election process to ECP including details about the members of the election commission, criteria for electoral rolls, qualification, and nomination of candidates, and voting statistics. ECP should be empowered to receive petitions regarding violations of an intra-party election process.
Article 202 (5): Membership of political parties
Comments: Affairs of political parties are conducted in complete secrecy and no information is provided to party members including minutes of meetings.
Proposal: Party members should have the right to petition ECP if a party fails to provide information within 15 days of the request. Failure to comply with this should subject the party to penalties including delisting if it commits the same mistake repeatedly.
Article 205: Selection of elective offices
Comments: Blatant violation of democratic norms inside political parties is experienced in the award of party tickets to candidates for NA and PA. There is no transparency and democratic practices in these award of tickets.
Proposal: ECP should not just regulate the conduct of general elections but it should also be empowered to regulate democratic norms inside political parties. Political parties should be required to submit their ticket award procedure to the ECP at least 120 days before general elections. At the time of finalization of nomination forms of candidates, the parties should be required to provide a certificate that it has followed the ticket award process submitted to ECP. Any candidate that believes there has been a violation in the award of party ticket should reach out to the election tribunal formed by ECP. These tribunals should give their verdict within 15 days of the filing of petitions.
Article 206: Functioning of political parties
Comments: None of the political parties are operating as per their party constitutions. Party members are kept in dark about the political decisions and minutes of meetings are not made available for the members.
Proposal: In this article, another item should be added that party office bearers should submit a certificate that it has been operating based on party constitution. It should be made mandatory for the parties to provide minutes of meeting upon request by any member of the party.
Article 207: Elections within a political party
Comments: Almost all political parties are run as family enterprises or autocracies. The main reason for it that parties have failed to introduce democratic tradition inside parties and equal opportunity is not provided to party members to contest for party positions.
Proposal: An item should be added to this article that political parties should be required to submit to ECP complete details of their intra-party elections including the appointment of the election commission, preparation of electoral rolls, criteria for nomination and voting statistics. Each party should be required to provide a certificate that it has complied with the election process submitted to ECP. This article should also have an item that empowers party members to submit petitions to the ECP regarding violation of election process in political parties. In case violations are found the certificate of completion of intra-party elections should be revoked and the party instructed to conduct elections as per the process submitted by them.
Article 212: Dissolution of political parties
Comments: If Federal Government is given authority to dissolve a political party then there is a conflict of interest because an elected government may act unjustly against an opposition party.
Proposal: Federal government should submit its petition to ECP requesting delisting of a party along with evidence and justification for it. If ECP issues a verdict to delist a party only then Federal government should get an authority to issue an order of dissolution which can be challenged in Supreme court.
Article 239: Power to make rules
Comment: An elected government has a vested interest to support rules that favor it. This article is subject to abuse if the voice of opposition is not included in it.
Proposal: Parliament should form a standing committee on elections that has equal representation from government and opposition parties. This committee should maintain liaison with ECP to ensure they have all resources available for smooth functioning of it. ECP should submit any desired rules to this committee for approval. These rules should also be published for public comments before being implemented.