Pakistan reforms on composition and mandate of Electoral Commission: The Devil is in the Details

The Twenty-Second Amendment introduced necessary reforms to the composition and mandate of the Electoral Commission. Nevertheless, the pattern of minimal parliamentary and public debate in passing crucial legislation is concerning. Moreover, the lack of independence, representation of women and minorities, and the challenge of implementing the reforms before the 2017 elections may undermine the effectiveness of the reforms – writes Shibil Siddiqi.   

Constitutional amendments in Pakistan have historically been controversial affairs, often representing a regression from the perspective of advancing democracy, civil liberties and human rights. They are generally passed under democratically elected governments unabashedly resorting to majoritarianism, or by military rulers equally unabashed in utilizing extra-constitutional means, intimidation and violence. Consider that the Second Amendment (1975) legally “excommunicated” members of the Ahmedi Muslim community, defining them as non-Muslims; the now defunct Eighth Amendment (1985) passed by a military dictator turned Pakistan from a parliamentary to a semi-presidential form of government, even allowing the President (constitutionally an unelected figurehead) to dissolve Parliament; and more recently the Twenty-First Amendment (2015), which set up military tribunals outside of the purview of the judiciary to try persons charged with terrorism offences. The relative merits of these amendments and others have spurred prolonged public debates and media scrutiny that continue to the present day. 

Not so the latest Twenty-Second Amendment. The Constitution (Twenty-Second Amendment) Bill, 2016 was proposed in the National Assembly (the Lower Chamber of the Pakistani Parliament) on May 19 and passed unanimously with no debate and little fanfare. On June 3, the Senate (the Upper Chamber of the Parliament) also approved it unanimously. In contrast to the wall-to-wall media coverage ignited by the controversial Twenty-First Amendment, coverage of the Twenty-Second Amendment quickly faded from the news cycle. 

Part of the reason that most Pakistanis and the media have been blase about the Twenty-Second Amendment is that there is broad social agreement on the need for electoral reforms to ensure free and fair elections at all levels, a consensus well conveyed by the Amendment Bill’s unanimous passage. However, another reason is that the Amendment is only a small piece of the larger, and uglier, story of stalled electoral reform in Pakistan. 

Therefore, to understand the Twenty-Second Amendment and situate its effectiveness or lack thereof requires an understanding of the political context in which the Amendment came to pass, and the deficiencies that it is meant to address. This piece briefly highlights the changes wrought by the Amendment, and critically examines it within its broader political and legal context. 

An Overview of the Twenty-Second Amendment

The Twenty-Second Amendment primarily deals with reforms to the Election Commission of Pakistan (ECP). It expands the eligibility criteria for the appointment of the Chief Election Commissioner (CEC) of the ECP. Previously, only judges of the Supreme Court or High Courts were eligible for the posts of CEC and Members respectively. The Amendment additionally allows for the appointment of retired senior bureaucrats and “technocrats”, defined as persons with university education and 20 years of professional experience. The Amendment fixes the maximum ages for CEC and Members as 68 and 65 respectively. Very positively, the ECP’s four members are to be appointed from each of Pakistan’s four provinces, remedying perceived provincial imbalances in the previous compositions of the ECP.  

In response to criticism of leadership gaps and ad hoc appointments, the Eighteenth Amendment to the Constitution ensured that the post of CEC can now only remain vacant for forty-five days. The CEC is to be appointed jointly by the Prime Minister and the Leader of the Official Opposition. Where the two are unable to reach a consensus, both shall send separate lists of candidates to a parliamentary committee equally comprised of the “treasury bench” - representing the government, and opposition parties, based on their strength in parliament, which will then appoint the CEC. The committee’s appointment is final.

The Twenty-Second Amendment builds on these earlier reforms. To preserve institutional expertise, the retirement of ECP Members is now staggered with two Members retiring every two and one half years rather than all four retiring together. For its first term, the Members will draw lots to determine which two members will retire after the first two and a half years.

The ECP has also been given responsibility for the delineation of electoral constituencies - a thorny issue in any democracy - and the preparation of electoral rolls for local body elections (following the Eighteenth Amendment, it already prepares the rolls for provincial and federal elections).

The Context of Electoral Reforms in Pakistan

The trajectory of the Twenty-Second Amendment was set in motion with the historic Pakistani general election of 2013. It represented the first time that one democratically elected government gave way to another in a peaceful and constitutional transition of power. A new government was promptly formed by the Pakistan Muslim League - Nawaz (PML-N) with third-time Prime Minister Nawaz Sharif returning to the premiere’s office. The electoral process brought new political forces to the fore, mobilized hitherto apolitical sections of the population, and increased youth participation. This transition, and the PML-N’s commanding majority in Parliament, allowed for a cautious optimism about an impending period of political stability, and the entrenchment of democratic governance and constitutional order in Pakistan.  

Unfortunately, optimism quickly gave way to crisis. Opposition parties began hurling accusations of mass-scale rigging against the government. Most vocal among the detractors was the Pakistan Tehreek-e-Insaf (PTI), a relatively new political party led by former cricketer and philanthropist Imran Khan. In an attempt to placate the opposition, the government formed the Parliamentary Committee on Electoral Reforms in July 2014 with representation from all major political parties. However, following the government’s refusal to form a judicial commission to investigate and address PTI’s concerns, Khan mobilized his supporters, marched on Islamabad in what he dubbed the Azadi (Freedom) March, and staged a sit-in protest for several months in the heart of the city on Constitution Avenue, where the Parliament is situated. 

The grinding deadlock negatively impacted governance, security, investment and the constitutional order in Pakistan, with many citizens fearing that a prolonged sit-in could lead to mass violence. Not only would this have undermined confidence in Pakistan’s nascent democratic order, it would have given the Bonapartist military room to interfere in or even upend Pakistan’s fragile democracy entirely. 

Fortunately, in another move indicating a slow maturation of Pakistan’s political actors, the stand-off ended peacefully in a show of political unity following the Peshawar Massacre of December 2014. The government also belatedly appointed a Commission of Inquiry to examine allegations of rigging or irregularities during the election. Thus began the journey towards the Twenty-Second Amendment. 

The Commission convened in April 2015 and presented its findings on 22 July 2015. The report of the Commission was a damning indictment of the ECP, its lack of planning, transparency and public consultation, inadequate processes and substandard management. The allegations of mass-scale rigging and deficiencies in the electoral process continue to tar the government’s legitimacy even three years on. Meanwhile, the ECP’s continued mishandling of subsequent by-elections and local body elections has, according to polls, led up to 70% of Pakistanis being in favour of deep reforms to the ECP. 

It is this work that the cross-party Parliamentary Committee on Electoral Reforms was meant to undertake. By July 2015, the Committee received some 316 recommendations for reform from the ECP, the public and other relevant stakeholders. These recommendations spanned from overhauling the ECP and simplifying and codifying Pakistan’s complex election laws, to the adoption of Electronic Voting Machines and voting rights for overseas Pakistanis. However, the Parliamentary Committee not only failed to present its final recommendations, it did not seem to be in any hurry to do so. The Committee Chairperson recently announced: “There is still time of two and half year remaining for the next elections so the committee was not in a hurry.” 

However, given public appetite for electoral reform as well as overhauling the ECP, in early May 2016, the Parliamentary Committee announced a proposal to amend the qualifications in the Constitution for the appointment of the CEC and other Members of the ECP. This took the form of the now Twenty-Second Amendment. 

Assessing the Twenty Second Amendment

Unlike the Twenty-First Amendment, there is nothing in the Twenty-Second Amendment that yields itself to much criticism. The reforms introduced by the Amendment are both popular and desirable for strengthening the integrity of future elections. Much more problematic is what is not in the Amendment. As well, the implications of the overly expeditious manner the government and Parliament have adopted for the passage of critically important laws are equally troubling in the long run. 

A glaring omission in the Twenty-Second Amendment is that it does not go nearly far enough in guaranteeing the ECP’s independence. Neither the ECP’s financial nor administrative independence are constitutionally guaranteed, as is the case in neighbouring India, and other advanced constitutional parliamentary democracies like Canada. Even within Pakistan, its financial independence falls far short of that of the judiciary and Parliament. Further, the ECP does not have sufficient residual authority to act when legislation is silent or vague with respect to novel electoral situations that may arise. In the rough and tumble world of Pakistani elections, such authority to act decisively in the course of an election cycle may be the difference between a smooth election and a deadlocked, even violent, one. Instead, once again in contrast to several other constitutional parliamentary democracies where election commissions can only be judicially challenged after the election has been conducted, the ECP can be and is often dragged through the courts during an election cycle. Without properly entrenched independence and a free hand in conducting elections, the ECP will continue to suffer from both political and judicial interference. 

The most substantive difficulty that presents itself is simply the technical and logistical hazards inherent in actually implementing any further electoral reforms that Parliament passes in time for the 2017 election. Two years (assuming the Parliamentary Committee tenders its full and final report soon and its recommendations are quickly passed given the Committee is a cross-party creature) is the blink of an eye in the world of implementing electoral reforms. Consider that India developed Electronic Voting Machines in 1980 but was only able to roll them out across the country nearly twenty years later in its 1999 election. It then took several years and several court challenges before they were accepted as legitimate alternatives to the traditional ballot.

Notwithstanding legitimate criticisms of the ECP, much of the on-the-ground polling work is overseen not by trained ECP employees but by District Returning Officers temporarily appointed by the ECP. These Officers are often drawn from the ranks of the lower judiciary, or even local government or state functionaries. A significant proportion of the mismanagement of specific electoral districts is because of the difficulty the ECP has historically faced in implementing election laws and codes of conduct at the local level. Even if reforms are passed making the ECP financially and administratively independent, and boosting training resources that are available to it, it would be impossible to hire and train the staff required to operate independently within such a short span of time. None of this even begins to address the challenges of allowing Pakistanis living overseas to vote at foreign missions, and then securely tallying ballots and/or transporting them back to Pakistan.

Pakistan’s present Constitution, passed in 1973, is more centralized than any previous incarnation, including the colonial era Government of India Act of 1935. Therefore, enshrining representation on the ECP from each province is certainly a positive step and one that will go some distance in allaying perceptions in the smaller provinces that elections are often gerrymandered to ensure the dominance of the larger provinces. What is regrettable is that there is no guaranteed representation for women and minorities. This oversight becomes all the more poignant in light of documented incidents of religious groups and political parties forcibly preventing women from voting in the 2013 general elections and subsequent by-elections. If the ECP is to be seen as legitimate in protecting the voting rights of all Pakistanis, its composition must be reflective not just of inter-provincial but intra-provincial diversity as well.  

Further, while allowing non-judges to sit on and lead the ECP broadens the pool of talented candidates and introduces other non-legal expertise into the ECP, there are looming concerns about the independence of Pakistan’s notoriously politicized civil servants.

Finally, there is a danger that the form of parliamentary legitimacy is being used to erode the substance of democratic decision-making. As noted, the Twenty-Second Amendment passed unanimously without any debate. The earlier Twenty-First Amendment - with its serious implications for the rule of law and democracy in Pakistan - was rushed through   the National Assembly after less than three hours of debate. Not only is the approval of Parliament being sought as a mere rubber stamp, no parliamentary committees or other forums are being used to consult with the public. Civil society organizations have criticized this trend under the present government of introducing important and clearly needed legislation at the eleventh-hour and then mechanically rushing it through Parliament without any significant legislative or public discussion. The trend of privileging form over substance and conflating majoritarianism with constitutional democracy has been dubbed ‘zombie democracy’ by the Economist Magazine (in the context of Turkey). While dramatic, it aptly captures the potential dangers of substantive democracy being cannibalized by its own democratic institutions.  

Conclusion

Undoubtedly, the scale of the electoral reform task facing Pakistan within the time-frame presented is a daunting one, and the Twenty-Second Amendment is only one small step in the (mostly) right direction. It is incumbent on the government to steer the process more efficiently by forcing the Parliamentary Committee to return its report. Failing this, the government will likely need to initiate a national conversation in managing expectations with respect to both the pace and scale of reforms that will be possible to implement by the 2017 elections. 

Given the cut-throat world of Pakistani politics, one also cannot discount that both the government and the opposition parties may be proceeding disingenuously. Everyone may have their eyes on the ultimate prize of seeking electoral advantage rather than electoral reform. The government may believe that a lack of reforms will better ensure a successful re-election. Meanwhile, opposition parties, equally represented on the Parliamentary Committee, may want to use the lack of substantive electoral reforms to shore up their own agitation against the government should they take issue with election results in 2017. Given that allegations of rigging the elections in 2013 led to a prolonged political and constitutional crisis, one can only view the slow pace of electoral reform in Pakistan with foreboding. Whether or not the road to 2017 is paved with good intentions, another crisis may yet be in the offing.  

Shibil Siddiqi is a lawyer practicing in the areas of poverty law and human rights law in Toronto, Canada. Shibil has worked on justice-sector projects in Pakistan and Afghanistan. He has strong interest in constitutional issues in Canada and Pakistan, and writes on law, politics and international relations. Shibil is a Fellow at the Centre for the Study of Global Power and Politics at Trent University.