ELECTORAL SYSTEM

Important for the discussion that follows is the broad ranging challenge launched by the Workers Party in 2012 in which ‘certain practices of electioneering as violative of fundamental rights were highlighted’.^[210] Coming from a party with few resources, but one that aims to repre­sent the interests of the urban and rural poor, it was less concerned with conduct of particular electoral contests and took broader aim at the system of rules by which embedded disparities continue to be replicated.

A. Elections

A significant demand of the Workers Party petition was of requesting oversight over the duties and responsibilities of the Election Com­mission, a permanent body whose authority and mandate is defined in Articles 213—221. The office of the President of the Commission and of the four Members of the Commission are to be filled through appointment by the President, for a term of three years after a vetting of candidates through a parliamentary committee hearing of which the representation is to be equally divided between government and opposition.^[211] Article 218 provides that

it shall be the duty of the Election Commission to organise and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

The statute governing the regulation of elections within Pakistan, and thereby providing the main body of rules and regulations that the Election Commission and its officers are tasked with upholding, is the Representation of the People Act 1976. All of the competencies cited above are defined in this statute. In addition, it lays out the upper limit of campaign spending for individual candidates in their bid for office. For candidates seeking to be members of the national assembly this is set at 1.5 million rupees (approximately $15,000 US).

The Workers Party asked the court to review the adequacy of these sums. The Workers Party argued that even if effectively policed as the maximal limit, which it has never been, the allowable sum is already a bar to effective participation for those who are themselves not wealthy nor part of a wealthy party apparatus.^[212] To this end, they also asked for a declaratory statement that expenditure such as undertaken by party machines through media advertisements, handbills, billboards, sponsor­ship of large political rallies, etc, constitute a violation of these rules. Not surprisingly, the larger parties who were requested by the court to offer their testimony on these matters differed on the extent to which such controls should be enhanced. They cited ‘political expression’ and ‘democratic practice’ as their legitimation for maintaining the status quo. The court saw the present sums as constituting a reasonable limit and ordered only that they be subject to greater policing.

B. Voters /Constituencies

Another issue identified by the Workers Party petition was the Election Commission’s record on the maintenance of electoral rolls. These rolls are the record of eligible voters in a given constituency, which must be checked off by officials of the Commission at the time of ballot distri­bution on election day. The process for the registration of electors and the periodic revision of electoral rolls are laid out in the Electoral Rolls Act of 1974. The requirements for individual registration as well as the maintenance of electoral lists have historically impacted the perception of whether or not a free and fair election has taken place.^[213]

Voters in Pakistan are simply those who have attained the age of 18 and are citizens of the country.^[214] Voter registration has historically been fraught with problems as various technological means have been found lacking, either giving rise to false votes or in effectively disenfranchis­ing potential voters.

As the 2013 elections approached, a spate of constitutional petitions were filed asserting that some degree of mismanagement or foul play was at play in the registration of voters. The greatest irregularities were alleged to be taking place in Karachi, where in one instance 669 votes were registered as residing in a small single-family home. It was also alleged that almost 50 per cent of voters had had their votes trans­ferred to other localities.^[216] The Supreme Court in Imran Khan v Election Commission^[217] bemoaned the Election Commission’s non-compliance with the directions it issued in Workers Party and offered specific directions.

Karachi has been host to a great deal of migrant labour from other regions of Pakistan and the city’s shifting demographics threatened the ethnic vote bank which has generally delivered Urdu-speaking vot­ers to the Muttahida Qaumi Mahaz (MQM) and Sindhis to the PPP. Particularly threatening to the MQM is the official recognition of a growing population of Pakhtoon workers, which has enabled the cul­turally nationalist Pakhtoon-dominated Awami National Party to gain a foothold in the city.

The consequences of such legal agitation were manifest in some changes in policy. Significantly, people were given the choice to register and cast their votes in the locality listed as their ‘place of work’.^[218] The Supreme Court also issued directions to the Election Commission to establish a mechanism for eight million non-resident ex-pat Pakistanis to be able to vote in coming elections.^[219] A broader consequence, how­ever, has been the push to further digitise the compilation of electoral data so that reliance is increasingly placed upon a recently inaugurated programme to compile a database of conventional and biometric data for all Pakistanis. However, problems in execution remain rife and issues of privacy and surveillance are being obscured in the headlong drive towards finding technological means of verifying voters and votes without what many believe to be an adequate legislative framework.

Also at issue in the failure to compile accurate electoral rolls as well as in the problems of demarcating constituencies has been the unavail­ability of accurate census data. The last national census was published in 1998. In a country with high levels of population growth and migra­tion as well as rapid urbanisation, the data from that census can only be the basis for projections that are too imprecise to be used in the man­ner that the Constitution and law mandate for facilitating democratic elections. Article 51(5) provides that constituencies will be divided on the basis of data from the last available census.

Cases arising from the demarcation of constituency boundaries in reference to local government elections have allowed for the elabora­tion of certain fundamental principles for the conduct of elections. These principles accord with changes introduced by the Eighteenth and Twentieth Amendments, as well in reference to judicially- elaborated definitions, founded in fundamental rights jurisprudence, about the guarantees of political justice.^[221] [222] In Province of Sindh v MQM⁶ the Supreme Court gave specific political expression to constitutional equality rights guarantees. Against gerrymandering, the court held that to vary the population distribution amongst constituencies is to work against the principle of parity on which a ‘one-man, one vote’ system relies.

At stake in this case was the discretionary redrawing of constituency boundaries to give sparsely populated ‘rural’ constituencies an equiva­lence with more densely populated urban constituencies by the pro­vincial government. The court found evidence that this was amongst the ‘attempts to establish a political advantage for a particular party or group by manipulating district boundaries to create partisan advantaged districts’. The exercise was found to be repugnant to the principle of ‘one man one vote’ and thereby also contrary to Article 25 equality guarantees in the Constitution.

The direction of the court in the MQM case, that the Election Commission bears responsibility for demarcating electoral constitu­encies for local government elections, was incorporated amongst the changes of the Twenty-second Amendment Act of 2016.

C. Rigging

Although the issues discussed above hint at ways in which unfair means might be used to influence electoral exercises, there are far more direct modes of intervention that have been at play in instances where elec­tions are rigged. What the political classes, critics of power politics and the general public in Pakistan have realised of late is that controlling or even rigging elections unfold in multiple forms and through mechanics that operate prior to, during and after elections.^[224]

Pre-poll rigging is defined thus as the violation of constitutional requirements such as ensuring the neutrality of the caretaker govern­ment, the independence of Election Commission and its functionaries, and violation of freedom of media. The use of ‘public resources to benefit some contestants’ in addition to the foregoing are all readily apparent in each of the episodes of ‘managed transition’, whereby Pakistan’s military governments agreed to devolve some power to civil­ians through electoral exercises. The election of 1988 became the sub­ject matter of a Supreme Court case, which was filed in 1997 but was not heard until 2014. In this case, extensive evidence of actual transfer of governmental funds to carefully chosen candidates, those who were trusted lieutenants for the army’s interests and ideological programme, were brought on board in the creation of a short-lived political party, one which formed the opposition after those elections.^[225]

Poll-time rigging is that which is most intuitively related to the sub­version of electoral preferences. The stuffing of ballot boxes with false votes, the use of coercion or undue means to influence voting behav­iour, and dishonest counting are amongst the acts that constitute such transgressions. Two specific electoral exercises have incited mass pro­tests about their fairness but have yielded very different results. In the case of the 1977 elections, after agitation by an opposition alliance, an independent enquiry was held and it discovered that polling booths had at times remained closed, that there had been armed militia members stationed at some polls, and other such irregularities had in fact taken place. The prolonged agitation, and Bhutto’s increasingly heavy-handed mode of dealing with street protestors and opposition leaders, became the pretext of Zia’s coup, announcing at that stage that both sides ‘were armed to the teeth’ and further bloodshed was otherwise imminent.

The allegations that emerged after the 2013 election were similar insofar as all parties, other than the victorious PML-N, made com­plaints about rigging. However, the PTI was more vociferous and at first demanded a recount in certain constituencies. The government did not cede to this demand and it was only after the PTI’s leadership staged a march to Islamabad and camped out there for a full 40 days that the government was brought to the negotiating table and a judicial commission comprised of sitting Supreme Court judges was asked to investigate allegations of rigging. Although the findings of the Com­mission were not legally binding, it recorded and evaluated evidence of alleged rigging from across the country. In its final report, the Com­mission cited considerable lapses in organisation on the part of the Election Commission but did not find evidence that the elections failed in providing a ‘fair and true mandate of the people’.^[226]

IV