FAFEN urges political consensus on electoral reforms ahead of elections

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 the political parties set aside their differences for upholding democracy and protecting its integrity through free, fair, and transparent elections, the country will continue to be embroiled in political instability having adverse effects on the already-fragile economy. With only seven months left of the incumbent National Assembly, FAFEN considers it to be 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, FAFEN 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, 2017 provided for relatively more autonomy to the Election Commission and introduced reforms in election processes. The Committee, however, 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 that 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 ballot or through the reservation of special seats for Pakistanis living abroad. Equally important will be legal measures to bind the Election Commission to scrutinize election results before the notification of the winners as a prerequisite for the integrity of the election outcome as well as to minimize the post-election litigation.

Initiating concrete measures for electoral reforms will be in consonance with the undertaking 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 Peoples Party committed before the apex court that they would introduce electoral reforms ahead of the General Elections. However, the government has not introduced any tangible reform package in the Parliament except the legislation restoring the original provisions of the Elections Act, 2017 regarding overseas voting (Section 94) and electronic voting machines (Section 103).

FAFEN believes such a political dialogue will help reduce the political tensions in the country and will ensure the conduct of peaceful elections. Considering the elections are constitutionally due by October 11, 2023, unless a political understanding otherwise, FAFEN 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:

Effective Checks on Political Finance: The political parties need to build consensus on strengthening the provisions of the Elections Act, 2017 concerning the use of money in elections. The existing checks on the election expenses are of little or no significance in the absence of i) a clear definition of the election expense specifying the duration during which an expense would be deemed as an election expense; ii) consideration of third-party financing in form of donations, material support as expenses incurred by the candidate without any condition; iii) mandatory scrutiny of candidates’ election expenses by the Election Commission; iv) 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.

Election-specific Regulation of Social Media: 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 elections during recent years, all having consequences on the election process and voter choice. 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 witnessed ever before in the country’s electoral history.

Enhanced Scrutiny of Result Management: FAFEN 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 polling station to the consolidation stages. The law should be amended to bind the Election Commission for 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 minimize 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 so as to ensure that the will of the people is truly translated in forming any government. FAFEN has prepared a detailed methodology for such scrutiny based on the existing law and the rules, which will be released shortly.

Facilitating Overseas Voting: 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 the legislatures requires political agreement. In absence of a reliable technological solution, extending the right to the postal ballot to overseas Pakistani voters may be a workable idea. Moreover, while the political parties contemplate the measures for facilitating overseas voting, they should also consider facilitating voting by internally displaced citizens who reside in other cities for work, through postal ballots.

Representativeness of Reserved Seats for Women: Currently, the reserved seats in the National and Provincial Assemblies are occupied by women from 27 percent of 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.