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- Monday, September 10, 2012 - From Print Edition

The writer is a former member of the Foreign Service

As the five-year term of the National and Provincial Assemblies nears its end, the attention-and the hopes-of the nation are focussed on the next general elections. The consensus appointment of the new Chief Election Commissioner (CEC) in July, after months of public wrangling between the government and the opposition, was a positive development. Since then, the Election Commission has published the final electoral rolls. This has not met universal approval but has been generally accepted.

A bigger hurdle to the smooth conduct of the elections will be the appointment of caretaker governments, which requires consensus between the government and the opposition. Under normal conditions, that would be a difficult but not insuperable problem. But the issue is linked with the implementation of the Supreme Court’s orders on the “Swiss letter.” Before agreeing to any nominee for the post of caretaker prime minister, Zardari would like to be sure that no such letter would be sent during the incumbency of the interim government. But any candidate for the post who is prepared to give this assurance is unlikely to be acceptable to the main opposition parties. If the deadlock cannot be resolved, the appointment of the caretaker prime minister would have to be made by the CEC.

An impartial caretaker government which remains politically neutral is, however, no guarantee that the outcome of the elections will be a true reflection of people’s choice. This is because of the wide prevalence of election malpractices, and of some deep-rooted flaws in our electoral system which deny to the smaller parties a fair share of seats in parliament. The Supreme Court addressed both these issues in its judgment last June on a constitutional petition filed by the Workers Party of Pakistan seeking the Court’s intervention to provide a level playing field for all political parties.

As regards election malpractices, the Court essentially directed the Election Commission to make full use of its power and responsibility under Article 218 (3) of the Constitution to “make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law.” The Court also gave some specific directions to the Commission to monitor election expenses and regulate electioneering activities. In implementation of the Court’s orders, the Commission issued a directive for the bye-election to a National Assembly seat which became vacant as a result of Gilani’s disqualification. This directive could only be patchily enforced and it is doubtful, in view of resource and personnel constraints, that these measures can be implemented on a nationwide scale in a general election.

The most important part of the Supreme Court’s judgement relates to the flaws of the present first-past-the-post (FTPT) electoral system, under which the candidate getting the largest number of votes wins even if he does not get an absolute majority. This system, which works well only in countries which have a two-party system, is also prevalent in Britain, the US, India, Canada and Bangladesh.

The FPTP system suffers from several disadvantages. First, in countries with multiple parties, such as Pakistan, it gives an excessively high number of seats to the larger parties, while denying the smaller parties a legitimate proportionate share. Second, it results in a large number of “wasted” votes, because ballots cast for a losing candidate are completely disregarded in determining the number of seats allotted to a political party in the legislature. Third, it favours candidates and parties entering into smart tactical alliances at the local level even when they have little in common on policy issues. Fourth, in Pakistan there is the additional problem that the FPTP system gives an undue advantage to candidates who are locally influential, either because of their wealth or baradri, and clan following or because they are pirs of some sort, but have no fixed principles or party loyalties.

As regards the electoral system, the Supreme Court observed that the FPTP system “violates the principle of majority (rule)” because the winning candidate does not necessarily receive an absolute majority of the votes cast. In the 2008 elections, the Court noted, winners in 108 out of the 268 seats that were contested (i.e., more than 40 percent) secured less than 50 percent of the votes and therefore could not claim to represent the majority.

Because of its obvious flaws, there are a growing number of countries which have discarded the FPTP system in recent years. Among them are Australia, New Zealand, South Africa, Russia, Afghanistan and almost all the former communist countries of East Europe. In Britain, the coalition agreement between the Conservatives and the Liberal Democrats after the 2010 election provided for switching from FPTP to the alternative-vote (AV) system, in which voters rank the candidates in order of preference. If no candidate wins an absolute majority of first preferences, the bottom candidate is eliminated and the second choices for him are added to the totals obtained by the others. The process is repeated until one candidate gets an absolute majority. This system is used in the Australian House of Representatives. But the proposal was rejected by British voters in a referendum held last year.

The two most common alternatives to FPTP are proportional representation (PR) and runoff voting. In the proportional representation system, which is prevalent in most European countries, the voters choose between lists of candidates put up by the parties and each party gets seats in proportion to the number of votes it receives. A variation of the PR system is mixed member proportional representation (MMP) in which, in addition to the party list, the voters also choose between individual candidates in geographic constituencies and the number of seats won by the winning candidates in these constituencies is deducted from the party total so as to maintain overall proportionality.

After declaring that the FPTP system violates the principle of majority rule, the Supreme Court asked the Election Commission to explore ways and means to introduce an appropriate system of election including runoff voting. The language used by the Court is recommendatory and suggests that it was not ruling out systems other than runoff, such as PR or MMP, to replace FPTP.

It is noteworthy that the political parties have not commented on the Court’s potentially far-reaching proposal to discard the FPTP system. They are either unenthusiastic about the idea or have not had time to study the matter.

The media and the civil society have also taken little notice of the Supreme Court’s recommendation. One NGO (PILDAT) which has commented has taken the view that the Court exceeded its powers and ventured into policy areas that are best left to the government, the parliament and the political parties.

This viewpoint is difficult to accept because it amounts to a denial of the power of the judiciary to decide the constitutionality of laws passed by parliament. There are certainly precedents in other countries of the judiciary calling upon the legislature to amend the election laws to make them more democratic and equitable. Only last July, the German Federal Constitutional Court ruled that the country’s election law was unconstitutional because the method of distributing seats in the lower house breached the basic principles of equal and direct elections, as well as that of offering equal opportunities to the parties. The German government announced immediately that that it respects the court’s decision.

The main question now is what action the Election Commission, to which the Court’s recommendation is addressed, takes in the matter. As a first step, it would do well to hold consultations with the political parties and representatives of the civil society. At the same time, it goes without saying that the Commission’s powers under Article 218 do not give it the authority to legislate in the matter. That power belongs exclusively to the parliament.

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