ECP powers: FAFEN points at gaps in elections bill

The draft bill fails to address major issues including ambiguity over disqualification of members

Our Correspondent January 17, 2017

ISLAMABAD: The Draft Elections Bill, 2017 is a combination of both progressive and regressive measures. This may turn out to be counterproductive and may not yield the desired results of improving the quality of elections.

These observations were shared at a consultative meeting organised by the Free and Fair Election Network (Fafen).

The bill, made public last month for general feedback, requires critical improvements to ensure the independence and authority of the ECP over all aspects of an election as a prerequisite for free, fair and transparent General Election due to take place in 2018, Fafen said.

While the bill adequately addresses some important weaknesses of the election system, it still has significant gaps that need to be filled. It stated that the proposed law does not go far enough in protecting the independence and authority of ECP with regard to the promulgation of procedural rules to administer elections and disqualify members who violate rules.

The commission is also not given full control over returning officers.

The election bill includes several positive measures related to women’s participation, but misses the opportunity to establish a legal procedure for collecting sex-disaggregated voting data or take initiatives on behalf of the electoral rights of other marginalised communities, including religious minorities.

ECP independence

The draft election bill stops short of providing complete independence and authority to the ECP that is needed to ensure an independent election. Section 239 of the draft bill is particularly problematic as it enables the ECP “to make rules for carrying out the purposes of this act,” but only with the approval of the government. The constitution and existing law requires presidential approval for rules, which also compromises the independence of the electoral body.

The powers of the commission are further weakened by inconsistencies in the law regarding disqualification of elected members. The commission may disqualify a member for a second violation of the code of conduct for political parties and candidates if its member is involved in an agreement to bar women from voting.

However, it cannot disqualify a member who has submitted a false statement of election expenses or wealth statement. The commission must refer such cases to the session court, which may allow members who have submitted false information to continue their membership until the exhaustion of all appeals.

The law also does not bring returning officers (ROs) under the supervision of the commission, rendering them practically independent, without a supervising higher authority. District Returning Officers (DROs) are subject to the “superintendence, directions and controls” of the commission, but similar language has not been used for the ROs.

Access to information

The draft bill is particularly regressive on the issue of access to information, which is protected under Article 19-A of the constitution. According to Section 194 (c) of the draft bill, a fine of five million rupees and an imprisonment up to five years may be awarded to any person who “publishes or communicates … information or data to any other person…which to his knowledge has been obtained or disclosed in contravention of this Act or in breach of the security, secrecy and integrity thereof.”

A similar penalty has been prescribed for an employee of ECP who “publishes or communicates any information or data to any other person” without having the authority. Interestingly, the penalties prescribed to restrict access to information are more stringent than the penalties for corrupt or illegal practices under the draft bill.

While the draft bill does provide legal protection to election observation, it bars access of media, observers and citizens to the scrutiny of candidates during the nomination process, which is a step backwards.

Participation of women

The draft bill includes commendable provisions to promote and protect women’s electoral and political participation, including the power of ECP to require a re-poll in polling stations or constituencies where women’s voter turnout is less than 10 per cent of the polled votes. The mandatory requirement for political parties to award five per cent of tickets for contestation on general seats to women, however, is cosmetic and should be increased to at least 17 per cent, Fafen demanded.

Political influence

The draft bill does not address the issue of political monopolies or prescribe any measures that can dilute control of some families over political parties.

The draft bill allows indirect elections to the Senate, which have the potential to allow party leaders to induct members based on nepotism and not merit.

Published in The Express Tribune, January 18th, 2017.


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