ECP finds changes in govt-backed election law unconstitutional

ISLAMABAD: The Election Commission of Pakistan has found several provisions of the government’s electoral reform bill, recently passed by the National Assembly, unconstitutional and has asserted that the proposed changes will make the ECP powerless in critically important election-related areas.

The ECP is of the view that the government’s bill curtails the Commission’s powers by assigning NADRA the task of preparing and revising electoral rolls despite the Constitution guaranteeing that no law passed by parliament will have the effect of taking away or abridging any of the powers of the Commission.

While the opposition says that the changes in the election law were bulldozed through the National Assembly by the government without allowing any debate, an official document of the concerned National Assembly standing committee reveals that the ECP had already formally informed parliament that many provisions of the government bill were in conflict with the Constitution of Pakistan.

NA Secretariat sources say that the NA Committee on Parliamentary Affairs did not discuss the ECP’s comments despite having been conveyed by the Commission in writing that the proposed amendments in Section 17, 21, 24, 25, 26, 34, 44, 95, 104 and 231 of the Election Act 2017 were in violation of the Constitution. Without considering the ECP’s point of view, the government first got these changes cleared by the committee and then passed from the National Assembly despite the opposition’s protest.

According to the details, with regard to the proposed amendment in Section 17 of the Act -- which states that the delimitation shall be on the basis of equal number of enrolled voters in every constituency of respective provinces—the ECP noted: “a. The proposed amendment is in conflict with Article 51(5) of the Constitution which provides that the allocation of seats shall be made on the basis of population. b. Article 51(5) impliedly requires carrying out delimitation on the basis of population and not on the basis of voters. c. This amendment will be subject to another amendment in Article 51(5) which provides criteria for distribution of seats among federating units on the basis of voters instead of population. d. The proposed proviso is against the main provision to which it relates as it talks about delimitation to be carried out after every census officially published. e. The amendment may result in enhancement of seats in urban areas due to temporary addresses of voters of such areas where they reside temporarily. This may lead to resentment in underdeveloped/ far-flung areas. f. The population of under 18 years of age may not be represented whereas one of the main components of resource distribution is population. g. The countries having federating units/ states such as USA, Canada and India have adopted criteria of population for delimitation. h. Hence the amendment is not supported.”

The government bill as passed by the National Assembly omitted Sections 24, 26, 28 to 34, 36 and 44 despite the following Election Commission observation: “The proposed amendment is in conflict with Article 219(a) & 222 of the Constitution. Article 219(a) being an enabling provision, contemplates a periodical revision of electoral rolls to keep them up-to-date. This is one of the prime duties of the Election Commission. Article 222 guarantees that no law passed by the Parliament shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission under Part-II of Chapter-VIII of the Constitution."

The Commission maintained that the preparation of electoral rolls and revising such rolls periodically is the basic role of the ECP, which by implication of the proposed amendment will take away from the ECP this role and hand it over to NADRA, which is working under the administrative control of the federal government. “In the event of inaccuracies in the electoral rolls, the ECP may share equal responsibility while having no direct role in preparation or revision of electoral rolls…”

The ECP added, “The omission of section 24 will render the Commission powerless to appoint Registration Officers in the first place. The Registration Officer plays a vital role in the preparation, revision and correction of Electoral Rolls…”

The government’s amendment, the ECP said, shall lead to the shifting of the power of registration to NADRA. “This amendment is not practicable as it seeks transmission of data from NADRA to the ECP for the registration voters. Giving power to NADRA to assign electoral areas is tantamount to giving it the power of registration of voters, an exclusive power of ECP under Article 219 of the Constitution.

The government bill also contained the amendment in Section 95(6), which says that the Commission may, before conclusion of the consolidation proceedings and notifying the returned candidate for reasons to be recorded, direct the Returning Office to recount the ballot papers of one or more polling stations. The ECP while discussing the entire procedure as per the present law, said that the proposed amendment is not supported for it being capable of creating hurdles in compliance with the constitutional obligation of declaration of result within 14 days of polling by the ECP.

Regarding the amendment in Section 104, which deals with ‘party lists for reserved seats’, the Commission said that the proposed amendment will make it impossible for the Commission to declare the results of all seats, including reserved seats, 14 days after the polling day as required by Article 224 of the Constitution. It said, “Generally, the Commission notifies the names of candidates elected on reserved seats four days after the declaration of results of general seats allowing three days to independent candidates to join any party under Article 51(6)(d)&(e). If a priority list is provided three days after the results of general seats, the Commission will not be able to declare the results in accordance with the Constitution.”

The Commission added that there is also apprehension that after announcement of results of general seats, the candidates for reserved seats may engage in corrupt practices in order to get confirmed seats.

Regarding another amendment, which proposed to provide opportunity for parties to submit a fresh list of their candidates during every election/by-election even if the list is not exhausted, the Commission noted, “Article 224(5) of the Constitution requires the provision of additional names only after the previous party list has been exhausted.”

The government bill also amended the Act’s Section 231 which deals with the qualifications and disqualifications of election candidates. The amendment clarified that the cut-off date for the purpose of assessing the qualifications or disqualifications under this section shall be the date of scrutiny. However, this provision shall take effect from October 2, 2017, when the Elections Act 2017 was notified.

The Commission rejected the above amendment by stating that “a. Article 62 and 63 provides re-qualification of a candidate and post disqualification of a member of the Assembly/Senate. b. A statutory provision cannot regulate constitutional provisions. c. Hence the amendment is not supported.”

Mumtaz Alvi adds: A meeting of the ECP was held here at the Election Commission Secretariat with Chief Election Commissioner Sikandar Sultan Raja and attended by the members of the ECP, ECP secretary and other senior officials.

The forum held threadbare deliberations on the Elections Act (Amendment) Bill 2020 passed by the National Assembly on June 10, 2021, which has been now transmitted to the Senate of Pakistan. It was reiterated that the ECP had already submitted its position on the amendments to the relevant standing committee through the Ministry of Parliamentary Affairs.

Therefore, the ECP expressed concern that its position on the said amendments was not discussed in the relevant standing committee.

`The ECP also discussed matters pertaining to I-voting for overseas Pakistani and electronic voting machine. The ECP had submitted the pilot project report of by-elections 2018 in the Parliament under Section 94, however, no progress could be made on the report.It was noted that the Ministry of IT conducted a third party audit of the I-voting system developed by Nadra, the report of which has been submitted to the ECP. According to the audit report, various shortcomings have been identified in the I-voting system that needed to be improved. The audit report recommends not using this I-voting system.

Regarding Electronic Voting Machine (EVM) and I-voting, in a meeting with federal ministers from the ECP on June 7, 2021, the minister for Science and Technology had said that the model of electronic voting machine developed in the Ministry of Science and Technology will be presented to the ECP in late July. In this regard, it is worth mentioning that the ECP of Pakistan has taken a demo of electronic voting machines manufactured by two international companies.