The Elections Act gives the ECP blanket powers to address the post-poll situation.
By: Muddassir Rizvi
THE controversy over the transparency of the vote counting process seems to have overshadowed the gains in terms of improvement in the quality of electoral processes that have been made in election 2018. Although the Election Commission of Pakistan (ECP) has ordered recounting in 25 national and provincial constituencies, it does not seem to have taken a proactive approach towards dealing with the post-election situation despite having greater powers under the Elections Act, 2017, to address post-election disputes and controversies. Allaying the concerns of political actors about electoral processes and addressing public perceptions about the election quality are as important for the ECP as is the judicious administration of earlier stages in the electoral process.
The pre-poll political environment was affected by an overzealous state machinery attempting to weed out corruption in the election year, combined with reported curbs on the rights of expression, speech and press. Nevertheless, the ECP appears to have kept itself insulated from any major controversy through the electoral process until the end of election day when claims by major political parties emerged that their polling agents were disallowed from sitting through the counting process and were not given copies of Form-45 (result of the count) as required by law. The failure of the Result Transmission System (RTS), which led to delay in the publication of provisional results long beyond the legal 2:00 am deadline, compounded the fears of political parties that the election results were being manipulated.
The political crisis that now seems to be brewing and may spiral into another phase of public protest and outcry could have been managed better by the ECP. The admission of the failure of the RTS on election night was an honest move by the ECP secretary. However, the subsequent press statement from the chief election commissioner could have been a technical and legal response rather than an outright dismissal of the reasonable concerns of major political actors. That was the moment when the ECP could have engaged the protesting political parties by assuring them of greater scrutiny of whatever remained of the vote-counting and result-consolidation processes and guaranteeing a judicious hearing of their complaints using their extraordinary powers under the Elections Act, 2017.
While ECP leaders fully understand the scope of the powers they now enjoy, Pakistani citizens must also know what the ECP can do to address the currently evolving political situation, which has the potential to delegitimise an otherwise well-managed electoral process.
Let’s take Section 9 of the Elections Act, 2017. The provision fully empowers the ECP to declare an election null and void if it is satisfied “from facts apparent on the face of the record and after such inquiry as it may deem necessary” that “grave illegalities” or violations of the law or rules “have materially affected the result of the poll at one or more polling stations or in the whole constituency”. The ECP has the power to order re-polling at the polling stations concerned.
How is this section applicable to the current situation? If the ECP’s inquiry establishes the veracity of the political parties’ claim that their polling agents were removed from counting in specific polling stations, it may order re-polling at the polling stations concerned. If the scale of removal of polling agents was widespread enough that it could have materially affected the result of the constituency, the ECP may order a re-poll in the entire constituency.
Many of the parties’ claims could potentially be verified through CCTV footage, as these cameras were installed at almost a quarter of the polling stations. A review of this footage may also answer many questions that citizens and political parties might have over the role of various types of officials deputed for election duties.
Another challenge for the ECP is that there are at least 170 national and provincial assembly constituencies where the margin of victory is less than the number of ballots excluded from the count at the polling station level, which are later reviewed by Returning Officers (ROs) during the consolidation proceedings and either rejected or counted, if excluded wrongly by presiding officers.
This raises questions about the quality of the results management process. Reports suggest many ROs did not entertain requests from various candidates for vote recount under Section 95(5), which requires a recount of one or more polling stations “when the margin of victory is less than five per cent of the total votes polled in the constituency or 10,000 votes, whichever is less”.
The ECP would do well to review such decisions by ROs to assess whether they have been made in line with the legal provisions. Unlike in 2013 when election law did not explicitly provide for the ECP to review the decisions made by election officials, Election Act, 2017 Section 8(b) clearly empowers the commission to review any order passed by any election official, including rejection of ballot papers.
In addition, Sections 4(3) and 8(c) give the ECP blanket powers to take any measure it considers necessary to ensure a free and fair election. An audit of rejected ballots may also be timely as it would inform the commission of reasons for rejections as well as any patterns such as assistant presiding officers not signing and stamping the reverse side of ballots cast for a particular candidate.
The ECP must act as the custodian of the electoral process and therefore should ensure that all executive authorities including armed forces have performed their duties in line with provisions of the law. If officials are found to have done otherwise, the commission may punish them. This is exactly why the new law empowers the ECP in Section 55 to hold disciplinary proceedings against election officials, including security forces personnel, and penalise them directly without having to refer their cases to their parent department.
Unless the ECP uses its new powers to strengthen electoral accountability and address post-election controversies to the satisfaction of Pakistani citizens and political parties, the purpose of Pakistan’s first significant electoral reforms in nearly half a century will be severely compromised. What good are teeth if they are not used to bite — in this case for the nourishment and well-being of the body politic?