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June 20, 2021

15 sections of Election Act contravene Constitution: ECP

ISLAMABAD: As controversy on the government proposed poll reforms rages on, the Election Commission of Pakistan (ECP) has formally conveyed its concerns over the Elections Act (Amendment) Bill to the government through letters.

The opposition parties have also rejected these amendments and dubbed it as bulldozed legislation, carried out in the National Assembly, where the PTI-led coalition commands majority, but can face it tough to push it through the Senate in view of the opposition’s strength.

The Election Commission has raised objections against as many as 45 out of the total 72 proposed amendments, explained in two separate letters dispatched to the Ministry of Parliamentary Affairs and the Ministry of Law and Justice. Adviser on Parliamentary Affairs Babar Awan during a news conference a day earlier, wished the Election Commission should have first talked to the government instead of issuing a press release, concerning its ‘objections’ with reference to the amendments.

According to the ECP sources, a document has been shared with the government with reference to reasons for objection, which has pointed out 15 amendments repugnant to the Constitution and five inconsistent with the Act itself, whereas 17 amendments have been opposed by it on administrative grounds. However, the Election Commission has also supported 27 amendments as these are and another eight with amendments.

Referring to the document, these sources maintained that the amendment in sections 17 and 221 seeking ‘delimitation on the basis of voters instead of population’, is among the ones found to be in contravention of the constitutional provisions, being the duty of the Election Commission.

The Election Commission also noted that the amendment is in conflict with Article 51(5), which provides for allocation of seats on basis of population and this impliedly requires delimitation on the basis of population. Similarly, the proposed omission of 11 sections of Chapter-IV (sections 24, 26, 28, 29, 30, 31, 32, 33, 34, 36, and 44) relating to preparation and revision of electoral rolls has also been objected to finding this in conflict with Articles 219(a) and 222(c) of Constitution.

It contends that Article 219(a) requires periodical revision of electoral rolls and Article 222 guarantees that no law shall have the effect of taking away or abridging any of the powers of the commissioner or the Election Commission. The Election Commission emphasises that the omission of aforesaid sections will in fact take away the power of the commission of preparation and revision of electoral rolls, and hand over the function to Nadra which will be against Article 222.

Moreover, a proposed amendment in Section 25, empowering Nadra to register a fresh CNIC holder as voter, has also been opposed on the plea that registration of voters was an exclusive power of ECP under Article 219 of the Constitution. The commission has concerns on the proposed amendment in Section 43 empowering Nadra to remove name of deceased voter from electoral rolls, on the similar ground.

Likewise, an amendment in Section 104(4) and (5) providing for submission of fresh list by parties in the event of vacancy has also found to be flawed as Article 224(6) of the Constitution requires provision of additional names only after the previous party list has been exhausted.

The commission points out that the proposed amendment in Section 122 seeking open ballot for Senate election is also in the list of amendments found to be inconsistent with the Constitution: it says a committee has already been constituted to propose a mechanism to implement the Supreme Court’s opinion on presidential reference No. 1 to this effect; the matter will be addressed once detailed opinion is issued.

In relation to the amendment in Section 202 seeking 10,000 members of each party instead of 2,000 for enlistment with the ECP, the commission notes that regional parties will find it impossible to increase their membership to proposed strength of 10,000 members.

The commission has opposed amendment in Section 231 seeking to add an explanation to set scrutiny date as the critical or cut-off date for the purposes of assessing the qualifications or disqualifications, observing that it was in conflict with articles 62 and 63 of the Constitution, which provide pre-qualification of a candidate and post disqualification of a lawmaker: a statutory provision cannot regulate constitutional provisions.

Another amendment in Section 9 to decrease the time for ECP to declare a poll void from 60 days to 30 days has also been opposed. The commission says that decreased period of 30 days will practically render holding of inquiry impossible. Likewise, an amendment in section 273 prescribing three years’ jail term for the delinquent official has been opposed on the ground that Section 188 of the Elections Act 2017 already provides for penalty of two and half years to the concerned official for offence under section 172(2). And hence the commission says that two penalties for one offence cannot be provided and it is against Article 13 of the Constitution.

An amendment in Section 17 binding the commission to complete delimitation of constituencies at least four months before issuance of election schedule has been opposed on the ground that extraordinary circumstances may occur as for general election 2018.

INP adds: According to the letter conveyed to the Parliamentary Affairs Ministry, the ECP has asked to bring the election body’s reservations into the notice of Prime Minister Imran Khan, before tabling the bill in the Senate.

Sources in the government shared that the letter bearing the date of June 17 was leaked to the media before being received by them and its content has also been published two days back. As per details, the ECP said that the proposed law carries an amendment seeking voting through an open ballot which was against Article 226 of the Constitution of Pakistan.

The ECP has already given its point of view in this regard during a presidential reference on the open ballot in the Supreme Court, the letter said, and added that the power of the ECP could be curtailed in case of implementation of the law.

“The matter should be raised with Prime Minister Imran Khan before tabling the electoral reforms bill in the Senate,” it said.