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Akbar Nasir Khan-Making elections egalitarian and lawful

With just thirty-five days to go for the eventful elections of 2013, the Election Commission of Pakistan has opened up so many avenues that everyone is a little concerned about their timely closure in this short period of time.  The controversial and somewhat hilarious process of verification of candidates under the criteria of Article 62 and 63 is under way and everybody has forgotten about compliance with the orders of the Supreme Court of Pakistan and the structure and enforcement of Code of Conduct. 
The judgment in C.P 87 of 2011 (Workers Party Case) was announced on 8 June 2012. The judgment aims to change the expensive nature of election campaigning and to provide for free, fair, just and honest elections in accordance with the law and the Constitution on a level playing field for all. This is absolutely fundamental. The judgment seeks to ensure that the election process no longer remains the exclusive prerogative of the wealthy and powerful mainstream political parties, and the ECP was directed to ensure that this was reflected in its rules and the code of conduct. At least three of the smaller parties who benefitted from the principles laid down in the judgment have written to the ECP since June 2012 to implement the judgment but there is no significant progress in this regard. 
The petitioner Workers Party and other parties wrote to the ECP for implementation of the judgment but the new code of conduct for Elections 2013 ignores the above principles and only focuses on regulating law and order in general or repeating certain provisions of the ROPA without providing details about an action plan. The most crucial aspect of the judgment missing from the Code of Conduct is a review of permissible campaign activities which, by their very nature, are expensive and exclusionary and are not absolutely essential for dissemination of ideas. 
The judgment requires the ECP to ‘review all election activities, including Jalsas, Jaloos, use of loudspeakers, etc. for their effects on the standards of “fairness, justness and honesty” that elections are expected to meet’. It is apparent from the code of conduct that it has not been made on the basis of the stated principle. For example, not a single activity has been disallowed due to its being exclusionary and high cost.
Given the expense ceilings prescribed under S. 49 of the ROPA, several activities such as car rallies, banners, stickers should have been totally disallowed. They are merely a habit and are part of a political culture of extravaganza. The code of conduct also needs to explain the concept of election expense ceilings and state the consequences of violating them. It should state that expense from any source cannot exceed the prescribed ceiling and that exceeding that expense, whether through donation or gift or in any other way, would be a “corrupt practice” as mentioned in S. 78 of ROPA. It should explain, for example, that when a candidate sets up a camp and runs it, he will have to explain how much it cost him. 
The Supreme Court has held (para 48 and 49 read with para 81 (c)) that daily maintenance and monitoring of election expenses is mandatory and an additional declaration should be filed by the contesting candidates. In this regard, stating a few requirements is not enough and the declaration form given in para 81 (c) of the judgment has to be made part of Form XVIII to be filed under Rule 30 of the Representation of Peoples Rules 1977. 
In its reply to the implementation application, the ECP states that the current expense ceilings are “not realistic”. This is an unacceptable statement. This means the ECP is accepting that permissible expenses in election campaign should be beyond 1.5 million Rupees. ECP is saying this only because it knows that in this political culture, candidates spend much more. The ECP should condemn and not condone this culture because it only benefits wealthier candidates.
Additionally, the ECP has proposed raising the security deposits of contesting candidates in the ROPA amendment bill. This clearly shows that it has not appreciated the judgment which requires that elections be made accessible to the common man. Even mainstream political parties have objected to this proposal.
On provision of transportation, the Supreme Court in para 81 (e) of the judgment, has categorically stated that ‘…in no case, shall it allow the candidates to hire/use private transport on election day’. This is a blanket ban but the Code of Conduct (in para 1(18)) violates this express ban by allowing candidates private transport for their personal use. Unless private transport is completely banned, it will not be possible for the ECP to monitor whether candidates are transporting voters or not. However, there is no way to stop the voters from using their personal vehicle. It is for this reason that the Supreme Court has also directed the ECP to ensure that no polling station is more than two kilometers away from a voter’s residence (i.e. walking distance) and to consider providing public transport to the old and disabled. 
Deputy Director of ECP-KP mentioned in a press brief that in section 46 of the Election Commission notification, ‘The district returning officer and returning officer shall be responsible to ensure implementation of the code of conduct in their capacity as first class magistrate through the district/local administration, district police or other law enforcing agencies in the area of their jurisdiction and violation thereof by any candidate or political party shall be tantamount to malpractices as per law and rules and shall entail legal action including disqualification of the candidate’. The ECP contends that the judgment was fully implemented in the by-elections and that it also appointed monitors as mentioned above.
Is it the ECP’s contention that the by-elections were held without any violations, or are they reporting that 500 cameras will be able to record evidence and prosecute offenders in the absence of clear legal edifice? If the two monitors, who are public servants, get a number of complaints against violations of the CoC then how will district returning officer and returning officers deal with these violations during the campaign period? If the offenders are not punished during the elections, will it be possible to prosecute them once they have taken the oath as members of the national and provincial assembly? Had it been the case, the ongoing verification of fake degrees would not have taken so long.
The Code of Conduct, wherever it prohibits/restricts a certain practice/activity should clearly mention penalties and consequences. The monitoring committees have been announced but further rules and procedures should also be carefully implemented and this information should also be made public as the ECP is rightly displaying the nomination papers and details provided by the candidates on its website. ECP should specify the monitoring and reporting role of the Police and local departments to monitor the rallies and point to where expenses are crossing the limits imposed by the law. The candidates should submit the expenses on prescribed performa and the returning officers should do necessary verification by the investigators.
By implementing the CoC, the ECP should make it possible for the poor, the middle class, and smaller parties to dream about representing their fellow country men in the highest representative forum of the country. 
The writer is a Governance and Security Expert  based in Islamabad

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  • Guest (Syed Masroor Hussain Shah)

    Good technical evaluation with forward looking effect.

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