Elections: the Uncertainties

The incumbent regime is busy doing what it thinks will endear it to the voters; it displays no worries over its re-election prospects because, despite loud claims about empowerment of the Election Commission of Pakistan (ECP), the ECP lacks critically important powers.

While the Army Chief has agreed to secure the electoral process in ‘sensitive’ locations, some politicians predict a “bloodbath” before and during the elections. Besides, ECP has been provided only one-third of the funds it needs for completing the massive electoral process.

Despite ECP’s warning to federal and provincial governments not to finance glaringly election-influencing expenditures or media campaigns, appoint fresh staff, make contract staff permanent, or promote cronies, this continues unabated while the ECP watches helplessly.

The ECP is therefore expressing its doubts about elections remaining transparent because, despite loud promises of the President and the PM to ensure fair and on-time elections, they are impeding this very outcome; the escalating violence could make elections appear even more doubtful.

On March 6, while talking to a Karachi-based daily, ECP members former Justice Riaz Kayani and former Justice Shahzad Akbar Khan exposed the limits to ECP’s writ in barring the sitting fake-degree holding parliamentarians from contesting the coming elections. While the sitting parliament undid the constitutional requirement of graduation for the future parliamentarians, fake degree holders who graced the legislature during 2008-13 are to be barred from contesting the 2013 elections, but only if “convicted” of this crime.

According to the ECP, Section 76 of the Senate (Election) Act-1975 prevents ECP from disqualifying fake degree holders because this provision of the law prohibits the ECP from inquiring into cases of such forgery six months after its being committed. According to the ECP, that’s so because as per the relevant Supreme Court (SC) order too, fake degree holding parliamentarians can’t be barred from contesting elections without conviction which, as shown by experience, could be stretched indefinitely.

So far, out of the ECP-identified 249 parliamentarians – the alleged fake degree holders – only two were convicted by Sessions Courts, but even they got stay orders from high courts, and thus can’t be stopped from contesting the coming elections. In February, ECP had addressed a letter to these parliamentarians advising them that if they don’t get their degrees verified within 15 days, they would be treated as fake degree-holders but, except for a handful, they didn’t comply with ECP’s instructions.

In this scenario, fake degree holders will again adore the parliament unless the government amends the relevant laws, or the SC issues directions to stop fake degree holders from contesting elections until the Higher Education Commission (HEC) verifies their degrees.

Expecting the sitting parliament to pass a law to this effect is over-optimistic; given its track record, that’s the last thing it would do. Besides, with just few days of its life left, it can conveniently ignore this issue citing lack of time for legislation. Hope of restraining the fake degree holders now rests on the SC, but the requisite action by SC could give politicians another reason to blame it for exceeding its authority – a line they adopted each time the SC faulted their actions based on their self-assumed ‘supremacy’.

The helplessness of the ECP in this context is proved by the fact that parliamentarians who resigned to avoid a conviction on the “fake degree” charge got re-elected because the ECP could not stop them unless a court convicted the fake degree holder. Although initially, ECP’s stand on this issue was different, now it admits that the SC can mandate that HEC’s decision on fake degrees (not court conviction) can empower the ECP to disqualify their holders – an alternative that the ECP, oddly, did not suggest earlier.

Then there is the scrutiny of the tax and bank defaulter status of the contestants. ECP insists that it won’t allow defaulters to contest, and accept the opinion of the State Bank of Pakistan and Federal Bureau of Revenue as final about a contestant’s defaulter status.

Only on March 7 (ie nine days before government’s completion of its term) the ECP sought the President’s approval of the new nomination form it had devised that requires disclosure of these details, which prompted a quick response by the Law Minister instead of the President.

The Law Minister rejected the new nomination format raising objections over the information sought therein (most amazingly) about educational qualifications of the contestants; he insisted that this should apply only to contestants for the “technocrat” seats in the Senate.

In the context of the candidate’s affidavit about being qualified for election, the Minister’s suggested text was: “To the best of my knowledge and belief, I am qualified and not disqualified for being elected or chosen as a member of Majlis-e-Shoora (Parliament).”

About criminal offence allegations against contestants, the Law Minister insists that candidates can’t be disqualified based on ongoing court proceedings; only their formal conviction can disqualify under Article 63 of the Constitution. As for providing details of taxes paid during the last three years and copies of tax returns, the Law Minister said “it is the job of the FBR [not the candidate]” and details of foreign trips during the last three years and outlay thereon, are irrelevant for a candidate’s qualification.

About requiring (former parliamentarian) candidates to state their single-most important service rendered for their constituency, his view is that it is irrelevant for qualifying or disqualifying a candidate as per Articles 62 and 63 of the Constitution. Earlier, the ECP had said that if the new nomination form is rejected by the President, it will use the existing form, but after the Law Minister’s terse response on March 8, reportedly, the ECP decided that it will still use the new form, but it can’t do so without Presidential approval.

This will be the first time the ECP would take a firm stand because, earlier, it bowed to parliamentarians’ pressure on the issue of the period for scrutiny of contestants’ educational qualifications, tax and bank record, character, property/asset, and foreign travel details.

The fact is that on all these issues, the ECP acted too late; that’s why it now needs SC support. The other view is that the delay was intentional so as to let the caretaker interim regime decide them, implying ECP’s high hopes in the caretakers’ integrity. The key dichotomy that a caretaker regime must resolve is that, as in the case of tax or loan defaulters (whose fate will conclusively be decided by the SBP and FBR for the ECP to disqualify them) the fate of fake degree holders should be decided by the HEC for ECP to act accordingly.