Chief Justice Iftikhar Muhammad Chaudhry administering the oath of office to Justice (retired) Fakhruddin G Ebrahim as Chief Election Commissioner of Pakistan on July 13
The appointment of Justice (retired) Fakhruddin G Ebrahim as the Chief Election Commissioner (CEC) has been hailed throughout the country as a good augury for a proper general election. He has made a series of extremely heartening statements about the need for a fair election and his own commitment to the ideal. The essential question is whether the institution he heads, the Election Commission of Pakistan (ECP), has the capacity to deliver on his promises?
One difficulty in determining the fairness of a general election in Pakistan is the wide gap between the standards applied by two main groups that may be described as perfectionists and pragmatists. The perfectionists maintain that Pakistan must meet the conditions of free and fair elections as laid down in democratic traditions and the relevant international instruments. In their view, elections are free only when voters make choices on their own, without considering what they will gain and without any fear. When they say fair elections, they mean quite a few things: that all those eligible to vote are allowed to do so, that the result of polling truly reflects the voters’ choice, that all eligible candidates are guaranteed a level playing ground, and that the mechanism for removal of problems and redress of grievances faced during the electoral process is speedy, efficient, decisive and just. The term democratic is used to stress, besides all the conditions mentioned for the holding of fair polls, the objective that those elected must be genuine representatives of all communities, groups and schools of thought in a nation, of its pluralist character.
The pragmatists argue that elections ought to be judged by Pakistani standards. They comprise two groups. One of them swears by an Islamic theocratic state and vigorously justifies discrimination against voters and candidates on the basis of belief.
All the religio-political factions belong to this category but they still only command the loyalty of a small part of the population. Their views are not shared by majority of the population but political parties claiming to represent the people choose not to oppose these religio-political factions. As a result, the pragmatists do not insist on respect for universal (they call them ‘western’) norms. They blink at discrimination rooted in belief and condone anti-democratic practices under the pretext of respect for the people’s culture and ‘realities on the ground.’ Since pragmatists enjoy far more clout than perfectionists, there is little hope that there can be a free, fair and democratic election as demanded by a democratically spirited people in the future.
Some of the institutional obstacles to a proper election cannot be overcome by the ECP, thus it should not be held responsible. One of the most serious impediments to fair elections is the apartheid-like practice of registering members of the Ahmedi community on a separate list. That this system is still in vogue has again been made clear in the ECP guidelines issued in 2011.
Furthermore, the present scheme for voters’ enrolment violates the principle of adult franchise and the joint electorate system. The relevant form asks the applicant to indicate their religion. Now that communal voting has been abandoned there is no need to record one’s belief while registering as a voter. This form must be revised and, to begin with, Muslims should not be required to declare their faith as there are no Muslim seats in legislatures — there are general seats which can be contested by Muslims and non-Muslims alike. The preparation of separate rolls is not required for non-Muslims and women, the only two quota categories, because they are indirectly elected.
On its own, the ECP cannot strike down the discriminatory provision made for Ahmedis. Theoretically, the Parliament has the power to do this but it is unlikely to attempt the task, at least for a while, nor can any help be expected from the judiciary.
The case is similar with anti-democratic clauses of the Constitution’s articles 62 and 63 (qualifications and disqualifications for membership of the legislatures) that were inserted by General Ziaul Haq as barriers against democracy. Following the restoration of the joint electorate system, these provisions have become anomalous and redundant. Democratic opinion has never accepted Zia’s additions to articles 62 and 63 as politically sound or legitimate, maintaining that as long as they are part of the basic law they are likely to be abused. That these provisions escaped deletion under the 18th Amendment was a huge disappointment except for those who are aware of the orthodoxy’s resolve to protect everything done by Zia in the name of Islam, however far removed from Islam his handiwork might be.
The third major obstacle to democratic elections is the set of discriminatory practices devised to prevent women from joining the electoral process. First, all women eligible to vote are not registered as voters as a large number of them do not have Computerised National Identity Cards (CNICs). Secondly, many women are not allowed to cast their votes as a result of an understanding among candidates. The ECP has proposed that an election in any constituency should be cancelled if the number of women casting their votes is less than 10 per cent of registered women voters. The proposal forms part of an electoral reform package pending in Parliament. While the ECP should use all possible means to have the move adopted by lawmakers, non-adoption of the measure will not deprive the ECP of the means to secure women’s right to vote. An accord between candidates that bars women from casting their votes amounts to a conspiracy to commit an illegal act under Section 171-J of the Pakistan Penal Code and a corrupt practice under the Representation of the People Act, 1976. Even now, the ECP has the power to cancel an election in a constituency or constituencies where women are not allowed to vote.
However, protests against women’s exclusion from the electoral process are limited to rights’ organisations and a section of the media. Quite a few political parties do not have a problem with the denial of women’s rights. Even the parties that reject discrimination against women do not give the issue the importance it deserves. Once again, the ECP may not be able to take on the pragmatists on this issue.
Another issue that has not received due attention relates to the use of religion in elections. Let us begin our discussion on this point by taking note of Section 171-C of the Pakistan Penal Code. It says that if anyone induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will be rendered an object of divine displeasure or of spiritual censure, shall be deemed to have interfered with the free exercise of the electoral right of such candidate or voter, and to have committed the offence of undue influence. A stronger version of this section is found in the Representation of the People Act, 1976. To the threat of divine displeasure has been added the threat of “the displeasure or disapproval of any saint or pir” and an additional clause includes giving or threat of giving any religious sentence in the definition of undue influence.
What do these provisions mean? If a candidate says he wants to enforce Islam, does no one opposing him render himself liable to divine displeasure? Another candidate flaunts a fatwa or appeal from a saint/pir asking the people to vote for him. Will anyone who does not heed to this call incur the displeasure of the saint/pir/mufti? These days resorting to the theory of takfeer (declaration of Muslims as kafirs) has become quite common. Who will protect the candidate, who has been declared as a kafir and is liable to be killed, and any voter supporting him?
Religious censure can take many forms and whenever religious parties are allowed to seek votes in the name of belief, there is an implicit threat to dissidents of losing out in the religious arena. Moreover, bringing belief into electoral debate means applying foreclosure to the people’s political, economic and social concerns. Thus, if religion is exploited for garnering votes, an election cannot be treated as fair. If nothing is done to redress the Ahmedis’ grievance, to review articles 62 and 63, to recognise women’s rights, and to check extra-democratic exploitation of religion, the coming election will not meet the universal criterion for fair polls.
Looking at the election prospects in a traditional Pakistani framework, keeping in mind the ground realities, one finds little room for complacency. The targets in the ECP’s strategic plan for putting order in the electoral process have not been met, though the ECP alone may not be at fault. The task of delimiting constituencies on the basis of present-day demographic realities has been abandoned. And we are stuck at the first step leading to fair elections — the preparation of complete, error-free electoral rolls.
A number of objections have been raised at the final list issued by the ECP. The total number of voters registered is said to be around 10 million short of the population eligible to vote. Women voters lag behind male voters by a wide margin that cannot be justified. All eligible voters do not have CNICs and there are CNIC holders who have not been enrolled.
According to a well-known observer, “some 10 million voters who possess CNICs do not find their names in the list. Another 10 million who died since the last count have not been removed from the electoral list … Finally there are millions who will be disenfranchised simply because they do not currently reside at the address shown on the electoral roll.” Those in distress can be estimated from the fact that about 560,000 people are reported to have filed petitions for the correction of addresses in Sindh alone. Instead of dismissing these objections in a huff or sulking with an extra sense of self-righteousness, the ECP should adopt some of the ways suggested to settle controversies surrounding the voters’ list.
There are well-grounded apprehensions of widespread violence during the coming elections, especially in conflict-ridden parts of the country, including (but not limited to) Karachi, Balochistan, Federally Administered Tribal Areas (Fata) and Khyber-Pakhtunkhwa. At some places violent means are likely to be adopted to subdue the rival groups and at some other places the extremist militants have issued notices showing their resolve to abolish electoral politics and the constitutional polity altogether. The ECP cannot possibly meet these challenges without complete support from state institutions and political parties.
Issues have been complicated by the Supreme Court’s intervention in a matter that lies squarely in the domain of politicians. The court had been asked to find ways to curb the election expenses of candidates. While it is true that the extensive use of money has made it impossible for people’s democratic choices to be fair, this matter cannot be solved through judicial orders. A large part of the directive issued by the Supreme Court to the ECP has already been provided for in the Representation of the People Act. New elements include pulling down the expense ceiling to 1.5 million rupees for a National Assembly candidate and one million rupees for each provincial assembly candidate; the condition that these amounts will be kept in a separate account; and the ECP will be responsible for transporting voters to polling stations and for issuing slips guiding them to polling booths. That these conditions are unrealistic and could lead to large-scale violation or adoption of ways to circumvent them was proven in the Multan by-election for the seat vacated by the former prime minister Yousuf Raza Gilani. Transport was provided at only 29 of the 259 polling stations, camps were set up by candidates, and votes were allegedly bought without drawing upon the funds in the expense account. If conditions laid down by the judiciary could not be met during the polls in a single constituency, how will they be followed during a nation-wide election? The best way to solve these electoral problems is for political parties to reach a consensus on a comprehensive reform package.
Right now two issues are of supreme importance. Without an independent, efficient and neutral caretaker regime it will be impossible to guarantee free and fair elections even in a limited sense. The manner in which leading parties will acquit themselves from the task of installing caretakers and retain the confidence of parties which are out of the loop remains to be seen, though it is not easy to sustain optimism. The second issue relates to the recruitment of temporary election staff — from presiding officers to law and order personnel. Any lapses in this area will undercut the chances of fair polls.
The most critical issue is the apparent lack of interest political parties have in holding free and fair elections. They have not shown the will to end biradiri links or the feudal hold in rural areas, nor will they cut down expenses, and the reasons are obvious. In the final analysis the prospect of free and fair elections will depend on the amount of commitment to democracy that political parties can attain, and their ability to discard the belief that only what suits them is right, fair and in national interest. n
I A Rehman is secretary general of the Human Rights Commission of Pakistan