Election laws 2017 brewing up another crisis?

Is there a fundamental problem with the way election laws are construed?


Hassan Yousaf Shah February 03, 2018
The writer is a lawyer and a Chevening scholar with experience in policy framework, litigation, judicial interpretation and legal matters. You can reach him at [email protected] and he tweets @hyshah1

So will the next political row focus around the elections, code, polling disputes and laws pertaining to the elections? The recently passed Election Act of 2017 will surely lend its weight to the thought that it will. The question to ask at this point is whether there is a fundamental problem with the way election laws are construed. Is there another sinister ‘scheme’ to dislodge the opposition? And if so who will benefit in the end? These are some of the pertinent questions this article will drive and focus on.

The elections are expected to be one of the most talked, sought-after episode for 2018 amidst the newly passed Election Act of 2017. The new law was passed by the legislature in October last year with some consent from the opposition members. The entire focus of the opposition party (parties for the sake of argument) in the 2013-17 period was towards a tainted election process, prejudiced election setup and much more which was later disapproved in the court of law. However, the newly proposed Election Act of 2017 is an outcome of the newly suggested, and the proposed laws have been drafted by involving the opposition this time around.

Let us dwell into the debate as to what is different in this law without being prejudiced to anyone, or without bias. For starters, the Representation of People’s Act, delimitation laws and even the rest of the laws have been repealed, which means they have been completely done away with, and replaced with the Election Act of 2017. This indicates that the new laws are all merged into one compact Election Act of 2017 and the makers of the law have introduced different connotations, amendments within the law so as to protect themselves against some or favour others. The law which needs to be carefully weighed and examined focuses on areas, including delimitation, election results, electoral rolls, disqualification of a candidate, appointment of election staff, and constituency list of the voters, polling stations and polling personnel. These identified areas are some of the key concerns which will be raised in the coming days in light of the legal roll-out and execution in practice. Some of these issues like disqualification are sub judice so it is better to leave it there. However, the issue of delimitation, for instance, is going to hurt and raise a lot of concerns within the circles.

The delimitation process as per the statute should be conducted within four months before the elections but it cannot resume till the final publication of the census, which is still due. Once again, the delimitation issue will not only hit many at large (especially the political candidates) but also political parties, voters and the Election Commission. The magnitude of the problem is beyond comprehension, as to the number of candidates in each constituency multiplied with the total constituencies both at the national and provincial levels may turn out to be a Pandora’s box. There may even be questions as to if this alone can be done within the time frame and can also raise conspiracy theories questioning if the elections can be done within time or not.

Punjab, according to the unofficial census figures, is supposed to reduce its seats in the National Assembly. If the Election Commission cannot carry forward delimitation according to the new census and reverts to the old delimitation, this will benefit Punjab the most and that too at the expense of provinces such as Khyber-Pakhtunkhwa and Balochistan which have gained seat proportion in the new census. This notion alone, if challenged in the Supreme Court, will give rise to uncertainty, misreading of the intentions and an audience to the conspiracy theorists. This is not to say that Punjab or its ruling government would like to see that happen. However, if position of the Punjab chief minister is the scalp of every political party is eager to earn in the coming year, then the census, political parties delimitation and the Election Commission presently are some of the key focus areas one must watch out.

Any changes in the above variables (for example, delimitation and the census) will then be fought out at every inch by political parties because it may well make all the difference. Not to miss the fact that the superior courts in the province too will be the place where such issues will be highly contested through legal battles.

The other challenge which the law will face is that it has been given immense powers under the new law to regulate and devise its own procedures. This is new compared to the previous enactment and thereby gives considerable powers which in light of the delimitation, voter lists, polling stations, election processes, may be challenged in superior courts far more both in volume and in interpretational aspects. This means that the entire face of the law, its application and political intensity will change from what little is perceived right now.

With so much litigation expected and heightened tensions, political parties’ daggers drawn, will the political instability serve its purpose and if it does not then what purpose will it serve? I leave political questions open-ended at such times.

Published in The Express Tribune, February 3rd, 2018.

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