IT is distressing to see the federal government legislating by presidential decree to the total exclusion of any consultative process both within and outside parliament.

The number of ordinances promulgated by the current federal government during the past 43 months of its term has already bestowed upon it the dubious distinction of issuing the highest number of ordinances per year among successive governments, led by different political parties, since 2008.

Ordinances, in general, are abhorrent as they deprive elected legislatures of their primary responsibility of legislation. but the use of ordinances to change electoral laws makes the exercise hazardous as well because it enhances the risk of delegitimising the electoral process.

The Elections (Amendment) Ordinance, 2022, amended the Elections Act, 2017, and altered the rules of the game in a substantive way. The Code of Conduct for political parties formulated by the ECP under Section 233 of the Elections Act, 2017, which prohibited the president, prime minister, chairman/ deputy chairman Senate, speaker/ deputy speaker of an assembly, members of the Senate or an assembly, federal ministers, ministers of state, governors, chief ministers, provincial ministers, advisers to the prime minister and chief ministers, mayors/ chairmen/ nazims, their deputies and other public office holders from participating in election campaign was abruptly undone. There was no effort to consult other players ie the political parties.

The new Section 181-A was introduced in the act allowing everything that was disallowed in Section 16 or 17 of the recent codes of conduct issued by the ECP for the elections of local government and the provincial and national assemblies.

The ordinance amending the election law violates the spirit of democracy.

In fact, more objectionable was the manner in which the amendment was made than the content of the amendment itself. If the same change in the law was introduced through the normal route of bringing a bill in a house of parliament, discussing it threadbare in a parliamentary committee, forging cross-party consensus while seeking ECP input as was done when Elections Act, 2017, was passed, there may still have been objections by certain sections of public opinion, but the credibility of the electoral process would not have been suspect as it is now. Besides upsetting the political parties, the Elections (Amendment) Ordinance, 2022, has apparently also induced new strains in relations between the government and the ECP.

Not only is the ordinance abrupt and violative of the spirit of democracy, it also seems to be motivated by anticipated short-term gains in this year’s major local government contests in Khyber Pakhtunkhwa, Punjab, Sindh and Islamabad Capital Territory after an embarrassing setback in the first phase of LG elections in KP held two months back. It also follows unsuccessful efforts by the government to postpone the second phase of the KP LG election.

The provision of the Code of Conduct which has just been scrapped by the ordinance was introduced in our electoral arrangement over the years after the bitter experiences of many elections during which public officials used state resources to run election campaigns for their party colleagues or favourite candidates.

Initial provisions did not include the mention of president and the provincial governors in the Code of Conduct prohibiting state officials from campaigning because it was felt that presidents and governors, representing the unity of the federation, would stay above partisan political activities. But later experiences indicated that while the prime minister and chief ministers were replaced by neutral caretaker successors during the general election, the presidency and governor houses continued to be used for election campaigns.

It is not absolutely clear what exactly prompted the inclusion of national and provincial legislators among the list of public office holders who were barred from election campaigns, but it seems that since committee chairs are provided vehicles, fuel and staff at the taxpayers’ expense, which could be misused during an election, and because ordinary legislators also have development funds at their disposal, it might have been considered prudent to include them among those who are not allowed to run campaigns during LG and by-elections.

In stark contrast to Pakistani law and the Code of Conduct, Indian electoral laws and the Model Code of Conduct (MCC) do not bar any elected state functionary from participating in election campaigns.

However, with the sole exception of the prime minister, who is allowed to use state protocol, transport and security during campaign trips, very strict provisions deny the use of any government transport, accommodation, staff etc. for election campaigning by ministers and other officials.

Ministers are also not allowed to combine their official visits with electioneering work. The MCC directs that both ministers and opposition leaders should have equal access to state guest houses and public grounds for accommodation and public rallies respectively and equitable access to state media for the purposes of election campaigning.

In order to prevent future elections from losing further legitimacy, the government should immediately lay the ordinance before parliament and engage the opposition in a dialogue in the standing committees with the aim of developing a consensus.

The ordinance should only become an act of parliament if and when a broad multiparty consensus has been reached. This may be a difficult and time-consuming route but this is how democracies operate.

The temptation to once again steamroll election laws should be resisted by the government as it may lead to a situation like the infamous 1977 general election with disastrous consequences not only for the ruling party but also for the country. Zia’s martial law and his 11-year-long rule was the direct consequence of the political instability created by the heavily manipulated general election of 1977.

If at all, allowing public officials to participate in election campaigns may require a strict monitoring regime to ensure that state resources are not channelled towards electioneering but the participation of ordinary legislators in the election campaigns may, however, be simpler and therefore allowed.

The writer is president of the Pakistan Institute of Legislative Development And Transparency.

president@pildat.org

Twitter: @ABMPildat

Published in Dawn, February 25th, 2022