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June 17, 2021

Electoral reforms bill subject to opposition-dominated Senate approval

Islamabad : The electoral reforms bill, unilaterally passed by the National Assembly, introduces multiple sweeping amendments in the election law. However, the bill is yet to be approved by the opposition-dominated Senate before its assent by the president.

The bill amends numerous sections of the Elections Act 2017, which had unanimously sailed through parliament during the tenure of the Pakistan Muslim League-Nawaz (PMLN) government unlike the present legislation that the incumbent government passed by the force of its majority amid an opposition uproar.

Section 94 has been substituted and its replacement says that the Election Commission of Pakistan (ECP) with technical assistance of the National Database & Registration Authority (Nadra) will have full mandate to facilitate or involve overseas Pakistanis for exercising their right of vote in the polls.

Meanwhile, a presidential ordinance promulgated a month ago that had also amended Section 94 said the ECP will, with the technical assistance of Nadra or any other authority and agency, enable overseas Pakistanis to exercise their right of vote during general elections in their country of residence. It also altered Section 103 and the amendment said the ECP will procure electronic voting machines (EVMs) for the casting of votes in parliamentary polls.

By amending Section 122(6), open ballot has been provided in place of secret vote in the Senate elections. The government had tried to get a nod from the Supreme Court by filing a reference on the issue but failed. The ECP is opposed to the open vote and it had taken this issue before the apex court.

Another modification proposes that the cut-off date for assessing qualifications and disqualifications of the present federal and provincial lawmakers and contesting candidates will be the date of scrutiny of nomination papers. The amendment takes effect from October 2, 2017, when the Elections Act was enacted.

An explanation has been added to Section 231, which clarifies that the critical or cut-off date for the purposes of evaluating the qualifications or disqualifications will be the date of scrutiny, which is carried out by the returning officers.

The existing Section 231 says qualifications and disqualifications for a person to be elected or chosen or to remain a federal or provincial legislator will be such as are provided in Articles 62 and 63. These articles do not specify any time frame for their application contrary to the present amendment. They have been invoked whenever the issue of such qualifications or disqualifications or contesting candidates has been raised before superior courts or any other legal forum. These constitutional provisions have also been brought into play retrospectively, and a large number of legislators, most of them belonging to the PMLN, have been disqualified. They have always served as a sword of Damocles hanging over the head of elected representatives.

An insertion has been made in Section 72A, which says the seat of a returned candidate will become vacant if he does not take oath within 60 days from the date of the first sitting of the National Assembly, Senate or local government. However, the present legislation being a federal law, if enacted, would not apply to the provincial assemblies, which make their own statutes. For this reason, provincial members have not been covered by the amendment.

Currently, there is one example at the federal level in which an MP-elect (PMLN leader Ishaq Dar) has not taken oath since his election in 2018. He is in the UK in connection with his medical treatment and is facing National Accountability Bureau (NAB) cases. After staying away from the Punjab assembly for nearly three years, prominent politician Chaudhry Nisar Ali Khan has now taken oath.

If the law were to be enacted and Dar was ousted, the Pakistan Tehreek-e-Insaf (PTI) will be able to add one more seat to its tally in the Senate because its nominee will almost surely be elected by the Punjab Assembly. The unelected current Finance Minister Shaukat Tarin seems to be a leading contender for the PTI ticket.

Yet another amendment in the Elections Act declares the ‘accounts receivable’ of a sitting lawmaker or a contesting candidate as an asset. A non-declaration on this count will entail disqualification. The non-declaration of salary from his son’s foreign company, which the Supreme Court described as a receivable asset, had led to the disqualification for life and ouster of Nawaz Sharif as prime minister in July 2017.

The amendment includes “accounts receivable” in the definition of assets contained in Section 2. According to the existing definition, an asset means any property owned or held by a candidate or a legislator.

The apex court had held that the question emerging for its consideration is whether Nawaz Sharif as a Chairman of the Board of Capital FZE was entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure under the Representation of the People Act (ROPA) and whether his failure to disclose them would entail his disqualification. Since the word 'asset' was not defined in the ROPA, the court relied on Black’s Law Dictionary to ascertain its meaning, finding that it includes: “something physical, such as cash, machinery, inventory, land and building; an enforceable claim against others such as accounts receivable; rights, such as copyright, patents, trademark etc.; and an assumption, such as goodwill”.

A proviso was added to Section 195, which says the ECP is bound to publish the decisions of its meetings and details of voting where it decides a matter through a majority. However, the ECP always makes public decisions taken, even if by a majority, and holds open hearings. But it does not disclose any such decisions taken in closed-door sessions.

Another amendment says the financial powers of the Chief Election Commissioner (CEC) to sanction and incur expenditure and create posts as per requirements will no longer be subject to various laws and rules of the government. The change in Section 11(2) dispenses with the requirements of “applicable laws and rules” in the exercise of financial powers by the CEC. This authority will now be subject only to the provisions relating to the normal audit. However, the CEC is required to remain within the allocated budget.

Simultaneously, a stringent amendment in Section 172 provides for imprisonment of ECP officials for three years in place of six months for tampering with ballot papers and other poll material. Disciplinary proceedings have also been stipulated for presiding officers (POs) who commit certain actions incompatible with the election law.

A new sub-section says a PO who does not comply with the Election Act and the rules will be liable to disciplinary proceedings and the imposition of a penalty commensurate with his guilt by the concerned authority under the relevant law applicable to him.

An important amendment says the victory of a candidate will be liable to be undone if he or any person on his behalf connives to violate the poll law to win.

Yet another key amendment says the application of a political party for registration with the ECP will be accompanied by a list of 10,000 members - rather than the present 2,000 - including at least 20 percent women, with their signatures or thumb impressions along with copies of their National Identity Cards (NICs).

Every political party will encourage people with “disabilities and transgender persons” to become members. Political parties may be bound to hold regular annual conventions and submit their report to the ECP mentioning at least the top ten problems of Pakistan, their reasons and solutions in the opinion of a majority of its members.