Electoral reforms: Fafen terms draft bill 'a combination of progressive & regressive steps'

Appreciating the Parliamentary Committee on Electoral Reforms for circulating the draft bill for public feedback, the Free and Fair Election Network (Fafen) opined that the draft bill is a combination of progressive and regressive measures, which may be counterproductive and may not yield the desired results of improving the quality of elections.
Moreover, the bill also does not completely address the structural issues pertaining to the independence, autonomy and authority of the Election Commission of Pakistan (ECP), the network added.
Elaborating, the Fafen said: "The Draft Elections Bill, 2017, represents a step forward but still 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 in 2018.
The proposed law, the network believed, does not go far enough in protecting the independence and authority of the EC with regard to the promulgation of procedural rules to administer elections and disqualifying members who violate rules. The Commission has also not been given full control over returning officers, and responsibility for critically-important steps in the election process, including candidate nominations and constituency election results.
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.
The constitution and existing law requires presidential approval for rules, which also compromises the independence of the EC.
Similarly, Section 240 of the draft bill has created dependence of the EC on the government when there is any difficulty in giving effect to any of the provisions of the bill. The government will forward such provisions to the parliament, and there is no timeframe for such referrals.
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 or if the member is involved in an agreement to bar women from voting.
The law also does not bring returning officers (ROs) under the supervision of the EC. According to Section 53 (1), an RO "shall do any such acts as may be necessary for effectively conduct the poll in accordance with the provisions of this act and the rules," rendering ROs practically independent, without a supervising higher authority.
The draft bill is particularly `regressive' on the issue of access to information, which is protected under Article 19-A of the Constitution. Similar penalty has been prescribed for an employee of the EC 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. These provisions clearly indicate an effort to curb access to information, and are unacceptable.
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 from the existing laws and compromises the transparency of this critical step in the election process.
The draft unified election law also fails to impose time requirements on the EC to make publicly available all of the critical documents related to elections.
The draft bill includes commendable provisions to promote and protect women's electoral and political participation, including the power of the EC 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 17pc at least.
Other important weaknesses that need the attention of the parliamentary committee include 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 apparently allows delimitation at any time before the issuance of the election programme, but last-minute delimitations may be used to influence the election process and its outcome.
The draft bill does not provide for the transparency of the process of the appointment of the caretaker governments. Minutes of the meetings of the leader of the house and leader of the opposition in this connection must be required to be made public.
The draft bill does not sufficiently clarify the criteria for finalising polling stations, including the number of female and male registered voters for each station and booth, as well as maximum distance, in case of exceptions, of voters from polling stations.
The draft bill does not adequately mention the duration in which expenses incurred by the candidate shall be deemed as election expenses. It also does not cover election expenses incurred by the party on behalf of the candidate.
The draft bill does not establish the EC's authority over postings and transfers of officials not on election duty.
The draft bill does not provide adequate specificity about the ballot counting procedure to ensure ballots for each election (seat) are counted separately and to ensure ballot papers from female and male ballot boxes are counted separately (for sex-desegregation of voter turnout data).
The draft bill does not provide a timeframe for election on reserved seats in LGs. It also does not provide a timeframe for bye-election on an LG seat falling vacant, the Fafen concludes.