Possible bulldozing of EVM use, i-voting in parliament: How will govt make ECP implement this law?

ISLAMABAD: Without waiting for the constitution of an agreed parliamentary committee, the government has decided to bulldoze the controversial use of electronic voting machines (EVMs) and i-voting plus some other contentious bills by the force of its majority in a joint session of parliament.

On September 21, Speaker Asad Qaiser presided over a session comprising government and opposition representatives in which it was decided that a bipartisan panel consisting of members of the National Assembly and Senate will be formed to evolve a consensus on the divisive electoral reforms and other officially sponsored legislation. The meeting had been held only after the two sides had shown flexibility over discussing the issue.

The government seems in such a great hurry to have a legal cover for the use of EVMs in the next general elections and i-voting for overseas Pakistanis that it did not wait for the setting up of the committee and its deliberations for which joint resolutions in the two Houses were to be passed. No such move was undertaken by either side.

It appears that the government reached the conclusion that the discussions in the new parliamentary forum would be a waste of time given the stand of the opposition parties to the EVMs and i-voting. It felt that its rivals were engaged in dilatory tactics and would never agree to the proposals. It believed that it was not possible to reach a consensus in the parliamentary committee because of the stubbornness of the other side. Therefore, it decided to go to the joint parliament session to approve its unilateral electoral reforms come what may.

The government is doing this despite the fact that 27 objections to the EVMs have been raised by the Election Commission of Pakistan (ECP) and 45 out of 72 amendments in the poll law that have been rejected are yet to be attended to. Besides, the opposition’s serious reservations also remain as sharp as they had been since the word go. Neither the government nor any other institution can force the ECP to follow a certain law as the electoral body could argue that fair and free elections would not be possible if it does so.

The Constitution exclusively mandates the ECP to hold fair, free and transparent elections, an essential duty and function that can’t be taken away by an ordinary piece of legislation like the amendments in the Elections Act 2010. The ECP’s reaction to the use of EVMs and i-voting even after they will be legalised will be obvious. The ECP has to follow the law made by the government but when it conflicts with its constitutional functions and duties, it has the power to say that it can’t enforce it.

Additionally, the amendments in the Elections Act after their passage in parliament are going to be challenged in a superior court as repeatedly announced by the opposition parties. The judicial forum adjudicates upon such petitions only after getting the response of the ECP as it has always done. The most recent example relates to the presidential reference filed by the government in the Supreme Court calling for an open ballot in place of a secret ballot in the last Senate elections, invoking its advisory jurisdiction. The ECP strongly opposed the official plea. Finally, the apex court dismissed it to the government’s chagrin.

Case law is available that provides for jealously guarding the independence of the ECP, given to it by the Constitution, in the exercise of its functions and duties in holding polls. When any election is held, it is the ECP and not the government or any other institution that is in-charge of the administrative machinery. Even transfers and postings of bureaucrats cannot be ordered without the ECP’s clear approval.

The fundamental objective of the electoral reforms as stated by the government ad nauseam is to have noncontroversial elections against the past through the use of the EVMs. But even before the polls, the future electoral exercise much before it will be held has been mired in political strife and mayhem because except the Pakistan Tehreek-e-Insaf (PTI), no political party has approved the new measures, which are being introduced for the first time in the electoral history of Pakistan.

In September 2020, the government had convened a joint session of parliament to pass three bills related to the Financial Action Task Force (FATF). It had succeeded amid the opposition’s boycott. As the opposition lawmakers had walked out, the government, taking advantage of their absence, had also passed another half a dozen bills, some of which were not on the agenda of the day’s sitting. Most of these bills had been rejected or stuck in the Senate because of the opposition’s objections. At the time, the opposition parties had a slight edge over the ruling coalition but several of its legislators had not attended the proceedings for different reasons. After the March Senate elections, the government’s position in the two houses together has improved over that of the opposition.

A year later, parliament is going to see a repeat of the past as far as the approval of several bills is concerned. These comprise not only the two electoral reform bills but some half a dozen other proposed pieces of legislation which have not been cleared by the Senate. By pushing through this legislation through parliament, the government wants to clear the backlog.