ISLAMABAD – The Election Commission of Pakistan (ECP) has expressed severe concerns over some clauses in the electoral reforms bill passed by the National Assembly, including voting rights for overseas Pakistanis as well as use of Electronic Voting Machines (EVMs), and has assessed that many proposed amendments may violate constitutional requirements.

The Chief Election Commissioner Sikandar Sultan Raja presided over a meeting of the commission on Tuesday and reviewed the amendments on which the commission has serious reservations. The commission said it had already submitted its response to the relevant parliamentary committee but regretfully it was not included in the bill.

The ECP has recorded these concerns and comments with its rationale in a detailed document – available with Dawn – that compares the original clauses of the Election Act 2017 with the amendments proposed by the government in the Elections (Amendment) Act 2020 that has been passed by the National Assembly and will require to be passed by the Senate before it becomes law. A press release issued by the ECP on Tuesday listed some of the concerns that the commission discussed in the meeting. However Dawn has access to the details of these objections as listed out in the comprehensive document, along with the reasons for the objections.

The ECP also fears the proposed amendments will dilute its constitutional powers and shift them to NADRA which is part of the federal government and not an independent body like the ECP.

The document is a compilation of internal ECP assessments. A few of these concerns are procedural in nature, but the more grave ones pertain to the dilution of ECP’s constitutional powers and also raise disturbing questions about the management of elections and the possible adverse impact on settled constitutional structures. The extent of the ECP’s concern over the new electoral reforms bill can be gauged from the fact that it has stated in this document that it does not support 28 of the total 62 proposed amendments. The bill has been cleared by the committee – that included members of the opposition many of whom were absent when the bill was approved - as well as the National Assembly, but it can be challenged in the court of law.

“The Election Commission will not allow any dilution of its constitutional structure as an independent body,” says Kanwar Dilshad, former secretary of the ECP.

The following are noteworthy concerns of the ECP:

1. ECP says right of vote to overseas Pakistanis cannot be given till the required legislation is done by the parliament regarding various practical aspects including whether they should have extra seats in the assembly, what kind of procedure should be adopted for them to vote etc

2. ECP says use of EVMs cannot be adopted till it is determined whether these machines are capable for conducting free and fair elections; whether they can operate in conditions of hot weather, loadshedding etc; how the accuracy, secrecy and transparency of votes can be ensured; and whether without proper testing the ECP can ensure free and fair elections with these machines

3. ECP says it cannot support the amendment that requires delimitation of constituencies to be done based on numbers of voters instead of on population as is done till now. It says this is not only against Article 51 (5) of the Constitution, it may also result in enhancement of seats in the urban areas due to temporary address of voters of such areas where they reside temporarily. It also raises another problem with grave repercussions for the federation when it says through such an amendment, the population of under 18 years may not be represented as 18 years of age is essential for voter registration whereas one of the main components of resource distribution is population.

4. ECP says it cannot support the amendment in the bill which says some sections of the original act be omitted leading to the responsibility of preparing electoral rolls being taken away from ECP and handed over to NADRA which works under the administrative control of the federal government. The implication is that the preparation of the final electoral rolls would then be under the control of an organisation that reports to the executive and is not independent and impartial like the ECP.

5. ECP also rejects the amendment changes the present practice in which NADRA sends data to ECP for registration of NIC holder as voter, and now proposes that the electoral roll will be the same as registration ID data of NADRA. The ECP says this amendment shall lead to the shifting of power of registration to NADRA whereas this is an exclusive power of ECP under Article 219 of the Constitution.

6. ECP says the proposed amendment seeks to give the right of correction in the electoral roll to NADRA by taking it away from ECP which is mandated by the constitution to make any correction in the rolls as and when required.

7. ECP says it cannot support the amendment in the new bill that states that the order of priority of candidates on reserved seats submitted by political parties can be changed within three days after the elections. It says this will make it impossible for the commission to declare results fourteen days after the polling day as required by Article 224 of the Constitution. The ECP also raises an important point when it says that when a voter casts his vote during a general election, his polled vote has a direct and indirect implication. The direct result of the vote is obtained immediately in the form of the success of his candidate but the indirect result is actually instrumental in determination of result on reserved seats on the basis of proportional representation. The implication is that if the list of reserved seats is changed after the election, it will not reflect the indirect implication of the voter’s choice.

8. ECP also disagrees with the amendment that proposes that enlistment of a political party should include a list of at least ten thousand members instead of the two thousand required presently. It says parties from smaller provinces and those working in less populated areas may not be able to get these numbers and this would discriminate against them whereas freedom of association should be encouraged.

9. ECP also does not support the amendment in the bill that says the clause about disqualification under Article 62, 63 should have an added explanation stating that the cut-off date for this purpose shall be the date of scrutiny and that this provision shall take effect from Oct 2, 2017. The ECP says a statutory provision cannot regulate a constitutional provision.

According to sources, the ECP was not taken into confidence while drafting the bill which is why it has now raised objections which it feels will be detrimental to the holding of free, fair, transparent and credible elections. The opposition has also voiced objections to the bill and is expected to challenge it through amendments on the floor of the National Assembly. It will also attempt to block its passage in the Senate. However, it is also evident that the opposition members were part of the committee that passed the bill. Many opposition members were absent during the proceedings which enabled the government to have the bill passed.

In the document containing its assessment of the bill, the ECP has given detailed rationale of supporting or opposing each of the proposed 62 amendments. Some key objections and reasons are as follows:

Overseas Pakistanis Voting

The original Act 2017 says “The Commission may conduct pilot projects for voting by Overseas Pakistanis in bye-elections to ascertain the technical efficacy, secrecy, security and financial feasibility of such voting…” The amended bill says the right of vote be extended to overseas Pakistanis. The ECP’s response is as follows:

“This amendment does not provide as to how the technical efficacy, Secrecy, security and financial feasibility would be finalized and dearth of what kind of parameters will render such measures flawed. For finalization of such measures, necessary legislation is required in the absence of which the manner of extending right To vote to overseas Pakistanis cannot be fulfilled … In order to exercise its mandate, ECP requires necessary legislation as to:

a. Whether there would be separate seats to be filled by overseas Pakistanis voting or they are supposed to vote in general seats

b. If there would be separate seats for them then what would be procedure of receiving of nomination papers and scrutiny thereof

c. What kind of procedure will be required to be adopted for polling by Overseas Pakistanis;

d. Whether there would be polling stations established abroad or it would be an online voting.e. What would be the method of counting of votes;

f. What would be mechanism of dispute resolution related to counting of votes;

g. How many days will be required to complete the process etc. .Additionally, the proposed amendment restricts ECP to take assistance from NADRA only whereas under Article 220 of the Constitution the ECP can seek assistance from all executive authorities in discharge of its duties of making arrangements for the conduct of free, fair and transparent elections under Article 218(3) of the Constitution.

Pilot Project was conducted by the ECP earlier and report thereof was sent for third party audit to IVTF (Internet Voting Task Force) which identified gaps and deficiencies and did not recommend the same for use in elections for overseas Pakistanis.”

Electronic Voting Machines

The amended act requires the use of EVMs in the next elections. However the ECP has expressed reservations as follows:

“This amendment does not provide as to how to technical efficacy, secrecy, security and financial feasibility would be finalized. The pilot project was conducted by the ECP and the report thereof was sent to the Parliament for debate which has not been debated till date. In case of conduct of pilot project, the following shall have to be considered by the ECP keeping in view its mandate of free and fair elections in terms of Article 218(3):-

i. Whether the machines would be capable for conduct of free and free elections?

ii. Whether ECP can conduct the pilot project within time before the next General Elections when its prototype has not been made and it also requires massive testing which is time taking process?

iii. The feasibility of machines has not been checked as yet. In case of rainy weather or much hot weather whether, load shedding, etc it would be able to perform. If issues arise, what would be the mechanism to solve it?

iv. How accuracy of votes, its secrecy and transparency would be ensured?

Without its proper testing and formulating proper adequate mechanism of its use, the use of machines for voting would give rise to suspicion and it would not be possible for the ECP to ensure free, fair and transparent elections.”

Delimitation of constituencies

The original Elections Act 2017 requires delimitation of constituencies by population. The amended bill has made a drastic change according to which the delimitation should be done on the basis of voters. The ECP has taken strong exception to this change and said:

“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 carries 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 under developed / far flung areas.

f. The population of under 18 years of age may not be represented as 18 years age is essential for voter registration 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.

Shifting ECP powers to NADRA

The new bill proposes omitting sections 24, 26, 28, 34, 36, 42, and 44 of the original act. The ECP believes this will take constitutional powers away from it and hand over to NADRA (which is part of the executive and therefore not an independent body like ECP). The ECP writes:

The proposed amendment is in conflict with Articles 219(a) & 222 of the Constitution.

Article 219(a), being an enabling provision, contemplates a periodical revision of electoral roll 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

Being basic duty of ECP, the preparation of electoral rolls and revising such rolls periodically will by implication of proposed amendment taken away from ECP and handed over to NADRA working under administrative control of the Federal Government.

In the event of inaccuracies in the electoral rolls, ECP may share equal responsibility while having no direct role in preparation revision of electoral roll to keen them up-to-date.

The importance of provisions, which proposed amendment seeks to omit, can be appreciated from facts given below:

a. The omission of section 24 will render the Commission powerless to appoint Registration Officers in the first place. The Registration Officer plays vital role in the preparation revision and correction of Electoral Roll. He looks after the issues of electoral areas census block and alteration of boundaries of census block. The Registration Officers have to assist the Commission at each district and to entertain and decide the application of registration, transfer and correction of voters.

b. Section 26 requires preparation of preliminary electoral roll and section 28 seeks its Preliminary publication allowing public to inspect and file claims/objections if any which are to be decided by Revising Authorities to appointed under section 29

c. Section 30 provides for period for lodging claims and objections while section 31, section 32, section 33 and section 34 deal with ancillary matters connected with preparation or revision of electoral rolls.

d. Similarly, section 36 requires the periodical revision in the absence of which no periodical revision can take place which is command of the Constitution enshrined in Article 219(a).

e. The omission of aforesaid sections will in fact take away the power of commission relating to preparation and revision of electoral rolls which will against the spirit of Article 222 which guarantees against abridging the powers of the Commission.

NADRA finalizes electoral rolls

Section 25 of the original act says NADRA will send data to ECP for registration of NIC holder as a voter. The new bill proposes that the electoral roll will be the same as the registration ID data of NADRA. The ECP rejects this with serious concern by saying:

The proposed amendment shall lead shifting of power of registration to NADRAAs far as biometric verification is concerned, it is carried by NADRA during registration.

This amendment is not practicable as it seeks transmission of data from NADRA to ECP for registration of voters. Giving power to NADRA to assign electoral area is tantamount to giving it the power of registration of voters, an exclusive power of ECP under Article 219 of the Constitution.

Further in most cases, the addresses mentioned by the NADRA in the identity cards are incomplete and the ECP through the Registration Officer by physical verification allows the enrolment of voters in relevant Electoral areas.

It will create problems for the ECP for assigning correct census blocks since ECP shall not have the power to do so for being shifted the same to NADRA.

In this backdrop, the amendment may take away the constitutional duty of ECP i.e. preparation of electoral roll.

NADRA is supposed to provide only unprocessed data of citizens to ECP which will be processed by ECP through its own field officers i.e. Registration Officers keeping in view the relevant provisions of the Elections Act 2017.

ECP has the power to seek assistance from any executive authority under Article 220 hence, NADRA’s role may only be restricted to assist the ECP in provision of data in unprocessed form and not a final processed data in respect of which ECP will not have power to undo or amend same.

In this backdrop, being constitutional obligation of ECP preparation of electoral rolls along with delimitation are prerequisites of conduct of elections which have been as such observed by Lahore High Court Lahore vide its judgment dated 31-12-2013 in w.p. No. 31986/2013.

Published in Dawn, EOS, June 16th, 2021