Arbitrary changes

BY A H M E D B I L A L M E H B O O B | 5/18/2015

THE Election Commission of Pakistan (ECP) quietly changed its rules for by-elections in three national and provincial assembly constituencies on May 7, 2015 by amending its earlier notifications and barring MNAs and MPAs from visiting these constituencies and taking part in the election campaign.

The poll schedule for by-election in the Punjab Assembly constituency PP-196 Multan-IV was announced by the ECP on April 14 according to which polling is set to take place on May 21. The ECP announced the election schedules for the National Assembly constituency NA-108 Mandi Bahauddin-I and the Khyber Pakhtunkhwa Assembly constituency PK-56 Mansehra-IV on April 27, fixing June 8 as polling day.

At least for the Punjab Assembly by-election, the change in the rules of the game occurred barely two weeks before polling day whereas it happened four weeks ahead of the polling day in the other two constituencies.

In each general election, the ECP announces a code of conduct for political parties and candidates.

Article 18 of the Political Parties Order 2002 requires that the code of conduct be prepared by the ECP in consultation with the political parties. The ECP had notified a code of conduct on Jan 28, 2013 for the subsequent general election after circulating the draft among the parties and incorporating their feedback. Section 30 of this code bars various public office-holders from participation in election campaigns in any manner whatsoever.

These public office-holders included the president, prime minister, chairman/deputy chairman Senate, speaker/deputy speaker National Assembly, federal ministers, ministers of state, governors, chief ministers, provincial ministers and advisors to the prime minister and the chief ministers. A similar section has been a part of the previous codes of conduct as well but members of the national and provincial assemblies were never included in the list of public office-holders barred from participating in an election campaign. Although it was not clear whether the code issued at the time of a general election is applicable to subsequent by-polls, apparently it is not the case and the ECP normally issues separate notifications for making the code or a part of it applicable to a specific set of by-elections.

On May 7, the ECP practically amended Section 30 of the code of conduct for political parties and candidates. The change is seen to have taken place quietly because unlike previous changes in the election code of conduct, no process of consultation took place and the change was abruptly announced to the surprise of many political leaders and political parties as reported in the media.

Since the law explicitly requires that such a code be prepared in consultation with the political parties, it is in the fitness of things to undertake a process of consultation with the political parties even when an amendment in the code is made, irrespective of the fact whether such a modified direction is issued as a code of conduct or by any other name.

This brings us to two general points about the code of conduct for political parties. The general ownership of the political parties of the code of conduct has been weak in Pakistan and the primary reason for that is the minimal participation of political parties in preparing the code. The ECP prepares the code and circulates it among political parties.

Very few political parties or political leaders give any meaningful feedback and the ECP finalises the code on that basis.

A meeting convened by the ECP for consultation on the code of conduct prior to the 2008 general election attracted representatives of only five political parties; none of the mainstream parties such as the PML-N or PPP attended the meeting.

There is a need to take a fresh look at the process and find a way of involving not only political parties but also independent candidates, civil society and media in the consultative process to make the effort more meaningful. An arbitrary amendment in the code of conduct such as the one introduced on May 7 will not help strengthen the ownership of the parties of the code.

A similar code of conduct in India was prepared through the voluntary effort of the political parties without any external prompting. However, once the code was formally adopted by the political parties, the Election Commission of India took it upon itself to monitor and ensure its compliance. The Indian code of conduct over a period of time has evolved into a very strong instrument to keep the electoral process neat and clean. It is very likely that the code of conduct will strengthen its appeal in Pakistan once the participation of stakeholders is made more meaningful.

At present, the code does not have a very strong legal basis. Many sections of it simply reiterate some of the constitutional and legal provisions, and therefore are repetitious. Additional provisions lack any strong legal moorings. The ECP had proposed in 2012-13 a set of amendments in the Representation of People Act, 1976 but parliament at that time failed to pass those amendments. One of the proposed amendments seeks to add new provisions to Section 86 of the Representation of People Act to make the violation of the code of conduct punishable under the law. Parliament may take a fresh look at the issue and either convert the provisions of the code into laws or make violation of the code punishable.

Political parties should also consider undertaking an initiative to make the code of conduct a more meaningful document that is fully owned by them.

A number of multiparty conferences have taken place in the recent past. It may not be a bad idea to hold one on the subject. The parliamentary committee on electoral reforms can also help create a more meaningful code of conduct. •
The writer is the president of the Islamabad-based Pakistan Institute of Legislative Development And Transparency.

Published in Dawn