Fafen urges political consensus on electoral reforms

January 28, 2023

ISLAMABAD: The Free and Fair Election Network (Fafen) calls upon the political parties to immediately initiate a comprehensive dialogue on addressing the weaknesses in the existing legal framework for elections in the country.

“Unless political parties put aside their differences to uphold democracy and protect its integrity through free, fair, and transparent elections, the country will continue to be embroiled in political instability, having negative effects on the already fragile economy,” the Fafen says, urging political agreement on critical electoral reforms ahead of general elections.

With only seven months left of the incumbent National Assembly, it considers it an opportune time for the political parties to make necessary changes to the electoral framework that can guarantee free, fair, transparent, and inclusive elections.

For the upcoming general elections to bring stability, it proposes the formation of a cross-chamber multi-party parliamentary committee, similar to the one set up in 2014 with representation from the Senate and the National Assembly. Despite political fragmentation at the time, the 2014 Parliamentary Committee on Electoral Reforms (PCER) was successful in developing a consensus on the reforms’ agenda, allowing the enactment of a unified election law. The Elections Act of 2017 gave the election commission more autonomy and introduced reforms to election processes. The committee stopped short of addressing critical systemic issues such as improving representativeness, curbing the role of money in politics, and the use of technology in elections.

The election system in Pakistan is facing emerging challenges such as the increasing role of social media, which has opened up new avenues for the use of money in elections in the form of third-party financing of political campaigns, including from sources prohibited by the law. Similarly, the parties need to decide on the modus operandi for facilitating voting by overseas Pakistanis, either through postal ballots or the reservation of special seats for Pakistanis living abroad. Equally important will be legal measures to bind the election commission to scrutinise election results before the notification of the winners as a prerequisite for the integrity of the election outcome and to minimise the post-election litigation. Initiating concrete measures for electoral reforms will be jointly undertaken by the leaders of the incumbent coalition government in the Supreme Court during the hearing on the suo moto notice against the National Assembly deputy speaker’s ruling on the resolution of no-confidence against the former prime minister and the subsequent dissolution of the National Assembly.

On April 7, 2022, the leaderships of the Pakistan Muslim League (Nawaz) and the Pakistan People’s Party committed before the apex court that they would introduce electoral reforms ahead of the general elections. However, aside from legislation restoring the original provisions of the Elections Act, 2017, regarding overseas voting (Section 94) and electronic voting machines (Section 103), the government has not introduced any tangible reform package in parliament.

It believes such a political dialogue will help reduce the political tensions in the country and ensure the conduct of peaceful elections.

Considering the elections are constitutionally due by October 11, 2023, unless a political understanding indicates otherwise, it urges the political parties to agree on a minimum, common, and absolutely-must agenda for reforms, which may include the following crucial areas that need urgent attention in addition to the Elections (Amendment) Bill, 2020, subject to recommendations by the Senate Standing Committee on Parliamentary Affairs:

It suggests that the political parties need to build consensus on strengthening the provisions of the Elections Act of 2017 concerning the use of money in elections.

In the absence of a clear definition of election expenses specifying the duration during which an expense would be deemed an election expense, consideration of third-party financing in the form of donations, material support as expenses incurred by the candidate without any condition, and mandatory scrutiny of candidates’ election expenses by the election commission, the existing checks on election expenses are of little or no significance. Any punitive consequences for falsifying or withholding information in expense returns; v) a limit for the political parties’ financing of election campaigns; and vi) legal mechanisms to regulate election expenses incurred directly by the candidates or the political parties or their supporters using online means and social media. The proposed committee should consider strengthening the relevant sections of the Elections Act 2017, especially Sections 136 and 211, which concern the election commission’s action relating to election expenses by candidates and campaign finance by political parties. It thinks that the absence of a legal framework for regulating online political campaigning, advertising, fund-raising, and third-party financing remains a challenge to the integrity of the election process as well as its outcome.

Several countries have been struggling with the impact of fake news, hate speech, disinformation, counterfactuals, and misrepresentations on the election process and voter choice in recent years. The existing regulations and campaign expense caps do not adequately cover the campaigning and spending on social media by political actors from inside or outside the country.

Without the political contenders agreeing upon the extent and means of regulations on social media, the upcoming elections may see far more complex controversies than ever before in the country’s electoral history.

It urges the political parties to create provisions in the Elections Act, 2017 for greater control of the Election Commission of Pakistan (ECP) in managing the election results that are overseen by the officials seconded by the executive and judiciary, right from the polling station to the consolidation stages.

The law should be amended to bind the election commission to methodical scrutiny of constituency-specific election documents and forms, including the entire result trail, before the final notification of the returned candidates.

Such scrutiny will help minimise post-election disputes and will reflect the spirit of the Constitution and the law that require the election commission to act as the custodian of the integrity of the election process and its outcome to ensure that the will of the people is truly translated in forming any government.

The Fafen has prepared a detailed methodology for such scrutiny based on the existing law and the rules, which will be released shortly.

To facilitate overseas voting, it opined that, “notwithstanding the contentions on the modus operandi for overseas voting, all major political parties have at one time or another supported the idea of facilitating overseas voters in their country of residence.”

Multiple Supreme Court judgments have also asked the Parliament and the election commission to take steps to implement a “safe, reliable, and effective” method to enable overseas voting.

A comprehensive legal and procedural framework governing the mechanics of overseas voting and the mode of their representation in legislatures requires political agreement. In the absence of a reliable technological solution, extending the right to a postal ballot to overseas Pakistani voters may be a workable idea.

Furthermore, while political parties consider measures to facilitate overseas voting, they should also consider allowing internally displaced citizens who live in other cities for work to vote via postal ballots.

About the representativeness of reserved seats for women, the Fafen opines that currently, the reserved seats in the National and provincial assemblies are occupied by women from 27 percent of the 136 districts of Pakistan, leaving more than two-thirds of the regions unrepresented.

The distribution of provincial quotas for reserved seats among administrative divisions can help address this geographical imbalance.