DOCUMENT No. 18

EU Election Observers’ Interim Report

The Legal Side of the Election Process
Analysis of the Legal Framework Order 2002. At present, the main document laying down the legal order in Pakistan is the Provisional Constitution Order of October 1999, whereas the 1973 Constitution of the country is in abeyance till October 2002 elections, according to the judgment of the Supreme Court of May 2000. Post-election Pakistan will be governed under the 1973 Constitution as amended by the Legal Framework Order 2002 presented by General Musharraf himself on 21 August 2002. The package of proposed constitutional amendments was first published in June 2002 and was subjected to a public debate for some six weeks. The majority of the political parties expressed objections either to specific proposals or to the entirety of the package on the premise that amending the Constitution should be undertaken by Parliament and not by General Musharraf. The initial package of proposals included more than 70 amendments, out of which nearly one-third were retained in the final announcement as made by General Musharraf himself on 21 August 2002. The most contentious amendments would be:

1. The restoration of Art. 58, 2(b), allowing the President to dismiss the Prime Minister and his cabinet as well as to dissolve the entire Parliament at his personal discretion. Another amendment empowers the Governors to dismiss the Chief Ministers of the Provinces as well as to dissolve the Provincial Assemblies. The latter amendment renders the Chief Ministers ‘employees’ of the Governors and the Provincial Assemblies vulnerable to pressure.
2. The creation of a National Security Council (NSC) as a constitutional body is seen as yet another tool in the hands of the President, which, furthermore, institutionalises the presence of the military in the government of Pakistan. Given that four of the members of the NSC will be the Chiefs of Staff and that President Musharraf remains the Chairman of Joint Chiefs of Staff, the apprehensions are not unreasonable.
3. The insertion of a number of qualification and disqualification requirements for candidates for Parliament (Art. 62and 63, respectively) effectively pre-empting the electoral legislation prior to the adoption of the constitutional amendments by Parliament. There are serious concerns regarding a number of issues namely:

(1)     About the practice of extra-constitutional incorporation of provisions in the electoral legislation (in the form of constitutional amendments), prior to their validation from the would-be National Assembly to emerge from the October elections.

(2)     About certain qualification/disqualification requirements for candidates which do not seem to match international standards. For instance, the required university degree contradicts the low literacy level of Pakistan and may seriously affect the representative nature of Parliament.

4. The practice of disqualification of candidates for unpaid utility bills by candidates or members of their families:

(1)     Can easily be misused by political opponents, and

(2)     Should not replace other available legal remedies (e.g. economic sanctions).

5. As for the disqualification of absconders from the political process, this provision appears to pre-empt decisions of the appropriate courts and to interfere with the independence of the judiciary.
6.  The disqualification of former Prime Minister Nawaz Sharif and the new PML(N) leader Shahbaz Sharif seems to have no legal basis at all, neither in the domestic legislation nor in the internationally accepted practice.

Analysis of the Legislation of the Election Administration. Overall, the electoral process is governed by the following laws:

1. The Election Commission Order (Chief Executive’s Order No. 1/2002);
2. The Conduct of General Elections Order (Chief Executive’s Order No. 7/2002);
3. The Political Parties Order (Chief Executive’s Order No. 18/2002);
4. The Political Parties Rules, 2002.
5. The Representation of the People Act, 1976;
6. The Representation of the People (Conduct of Election) Rules, 1977;
7. The Allocation of Symbols Order;
8. The main document laying down the structure and powers of the election administration is the Election Commission Order (Chief Executive’s Order No. 1/2002), which gives the Election Commission of Pakistan (ECP), headed by a Chief Election Commissioner, practically unlimited powers to administer the entire process, including the right to overrule anything challenging its decisions (Art. 7C). These election provisions are in line with international standards or internationally accepted standards for democratic election. However, nearly all the parties have expressed their doubts as to the credibility of the Chief Election Commissioner due to his personal role in the acceptance of the results of the highly controversial 30 April 2002 referendum.
9. Analysis of the Legislation concerning Registration of Parties and Allocation of Symbols Under the provisions of the Political Parties Order(Chief Executive’s Order No. 18/2002), all the political parties had to hold intra-party elections for their office-holders as well as to submit to the Election Commission of Pakistan their manifestos and financial audits. These requirements did not cause any tension between the political parties and the Election Commission, nor did they necessarily enhance internal party democracy. As a result, most parties were registered within the time limit envisaged even though additional evidence was requested from some of them (the PPP-Parliamentarians being the only mainstream one) and 12 September 2002 has been set as a deadline for that. As for the allotment of symbols, the electoral law can be assessed as reasonable.

Analysis of the Legislation Regarding the Nomination/Registration of Candidates. The legislation laying down the procedure of nomination/registration of candidates envisages the submission of a rather lengthy application, including a number of qualification/disqualification requirements. It should be stressed at this point that various provisions in the Chief Executive’s Orders relating to qualification/disqualification requirements derive from the recently presented constitutional amendments and, therefore, lack the legitimacy they would have had if they had been validated by the National Assembly. Three of the most contentious requirements envisaging the disqualification of candidates during the nomination process are the following:

1. Default on bank loans or even for unpaid utility bills (either by them or by relatives of theirs) up to a rather small amount (roughly, 155 Euro);
2. Request of having a university degree or an equivalent Madrassah’s degree (which in practice disqualifies the vast majority of Pakistani citizens due to the high level of illiteracy in the country);
3. Failing of the candidate to appear in court in case of a pending charge, under Art. 63(p) of the amended 1973 Constitution, which is widely seen as a person-specific provision targeting former Prime Minister Benazir Bhutto. In strictly legal terms, the provision in question does not respect the fundamental principle of “innocent until proven guilty”. A particular attention has been paid by the EU EOM to the issue whether the above qualification and disqualification requirements meet international standards. While in at least seven countries worldwide (e.g. the UK, India and Ireland) outstanding debts can be regarded as a legitimate ground for the disqualification of candidates in elections, Pakistan appears to be the only country in the world where candidates can be disqualified for unpaid utility bills. Several of the financial eligibility criteria are not only applicable to the potential candidates themselves, but also their spouses, dependents and business associates. Introducing eligibility criteria that expand beyond the prospective individual is quite unusual, especially when these could prevent a citizen to exercise one of the most fundamental democratic rights of running for office As regards the university degree requirement, only Chile’s electoral legislation sets a minimal level of education as a pre-requisite for candidates to contest elections, and in very few countries (e.g. Botswana, Chile and Lesotho) candidates are required to prove a minimal level of literacy. It should be noted at this point that even in Pakistan a large number of parties have expressed their objections to the introduction of the graduation requirement. In practice the provision prevents an estimated 98per cent or less of the electorate from running for office. This is especially tangible for female candidates.

Legislation on Polling/Aggregation. As regards polling and the aggregation of results, at this stage all the necessary legislation appear to have been envisaged to enable free, fair and transparent elections. Whether that will be achieved on Election Day and immediately afterwards remains to be seen and duly assessed.

Implementation of the Election Processes to be Seen So Far

Independence of the Election Commission. The Election Commission is currently facing a confidence problem due to its actions during the presidential referendum earlier this year, but also because the Chief Election Commissioner legitimized Musharraf’s coup when he was Chief justice at the Supreme Court in May2000. Both these actions have negatively affected the general perception of the ECP as an independent body. In terms of its actions relating to the forth coming elections, the ECP currently presents a slightly more diverse picture. The issuing of directives regarding impartial media reporting during the elections, informing the returning officers not to accept nomination papers from sitting federal and provincial ministers as they might use state resources to further their re-election, as well as its allocation of election symbols to the seventy-eight parties and alliances in a fair and efficient manner could all be regarded as confidence building activities. However, we are yet to see that the Election Commission is willing and able to enforce its directives in an impartial and efficient manner on the ground.

Impartiality of the Public Administration. There exist a concern among opposition parties that federal and provincial authorities will use their resources to support pro-government parties and candidates. This has, indeed, happened, but the instances are at relative low level and not always beneficiary to pro-government parties.

Delimitation of Constituencies. All opposition parties have raised concerns regarding the factual delimitation of the constituencies accusing the Election Commission of gerrymandering. In some instances, the courts have ruled that the ECP must redistrict, while in many cases no changes were made. More cases are still pending in the courts and these could potentially alter the polling day in the affected constituencies should a redistricting activity be necessary.

Voter Registration. The number of voters on this year’s voters register has increased significantly since 1997 (from 56 million to 72million). However, serious concerns have been raised regarding the quality of the register since it is to a large extent based on last year’s much criticized local election roll. Even though extensive cleaning exercises have been conducted by NADRA, doubts still remain regarding the quality of the voters register. NADRA has been forced to amalgamate three different sources of information under immense time pressure, which is a significant challenge for any institution in-charge of such a massive and complex operation.          

ID Cards. Another essential problem that shouldn’t be ignored is the fact that voters must present their new computerized National Identity Cards in order to cast their ballot, even if their name is on the voters register. So far NADRA has only been able to issue just over 10million new ID cards. In order to overcome this deficit, NADRA intends to issue voters with manual, less secure, ID Cards. This could potentially open up the elections to multiple voting and impersonation. Especially worrisome is it that less than 52 per cent of the registered female voters have an acceptable ID Card recorded on the voters register. Even though a large number of those individuals are expected to have either an old or a new ID Card, many women will not be able to take part in the elections.

Transfers of Civil Servants. Although the “bulk transfers” of civil servants is forbidden during the pre-election period, highly needed individual transfers as an exception are not precluded by the electoral legislations. There have been a few indications of deliberate transfers of civil servants allegedly meant to facilitate pre-poll rigging, but evidence substantiating these allegations has not been provided to the EU EOM.

Party Registration and Allocation of Election Symbols. The registration of parties and alliances were conducted in a transparent manner by the ECP. And so was also their allocation of election symbols, as all the major parties retained the election symbol used in previous elections.

Registration of Candidates. Only a couple of hours before the deadline for nomination of candidates expired, the ECP announced an extension of an additional two days. The extension was a direct result of the difficulties candidates experienced when filling out their application forms, due to the new rigid qualifications introduced. A clear picture of the extent of disqualification will emerge after the 13 September 2002, after the consideration of all the appeals by the competent Election Tribunals. Yet, it is a fact that a number of politicians have abandoned the race mostly due to the lack of university degrees. It is reasonable to assume that, had these candidates filed their papers, the share of rejections would have been higher. At this stage, the number of rejected nominations accounts for nearly 10 per cent of the total. In certain areas of the country, notably in the Federally Administered Tribal Areas (FATAs) and the Province of Balochistan, the rate of rejected nominations in the FATAs is rather high - 20 per cent and 12 per cent, respectively. Apart from the disqualification of Ms. Benazir Bhutto, another prominent case is that of former Prime Minister Nawaz Sharif and his entire family, including the new leader of the PML(N) Shahbaz Sharif. Their disqualification from contesting the elections is reported to be based on a political agreement, according to which the Sharif family has pledged to stay out of the country for a period of ten years. The existence of such an agreement was announced by General Musharraf himself during the press conference on 21 August 2002. In legal terms, such an agreement is highly questionable, as it does neither seem to be based on any domestic law nor does it match any international standards for keeping citizens out of their home countries. In certain cases, there is ground to believe that the ROs showed excessive zeal or a somewhat personal interpretation in exercising their duties. Indicative is the case of Imran Khan, leader of the Pakistan Tehrik-e-Insaf party, who saw his nomination papers rejected in two constituencies, whereas the same application was accepted in three more. Last but not least, the disqualification of the party leaders Benazir Bhutto (Pakistan People’s Party), and Nawaz Sharif and Shahbaz Sharif (Pakistan Muslim League-N) was not unexpected. All the three were disqualified on the above-mentioned controversial legal grounds.

Pressure on Candidates to Contest or Abandon. There have been quite a few allegations about pressure exerted on candidates either to join the pro-government Pakistan Muslim League (Quaid-e-Azam) or to leave the race. EU EOM has evidence indicating that at least in one cases the allegations might be well founded that a retired prominent politician has been pressed to run as a candidate for the king’s parties.

Election Campaign. The ECP’s code of conduct for political parties allows them to organize processions (walking demonstrations). However, when the military regime announced that public activities by political parties would be allowed starting 1 September, it also made known that a number of restrictions would be enforced. The more salient ones were that political meetings could only be held at specifically designated place decided by district and provincial authorities, that parties must seek permission from the authorities prior to holding a rally and that processions are completely banned. These restrictions will constitute impediments to parties’ electioneering activities. It also lends itself abuse as district officials are tasked to issue to permissions to hold political rallies, as well as decide where rallies can be held. Given the fact that parties have been banned from publicly interacting with the electorate for almost three years, and many new parties and candidates have emerged since, it’s absolutely essential that parties have maximum ability to communicate with the voters during the election campaign. Though demonstrations have been allowed since the 1st September, recent events have shown that not all parties are able to enjoy such freedom of gatherings. Reports of candidates being pulled off banned train journeys by police is inciting violent reactions from supporters. There have also been a number of election related deaths, either direct assassination of candidates or family members.

ECP’s Training of Polling Station Staff and Voter Education Activities. There exists grave concern regarding the ECPs’ ability to properly train the 300,000 polling station staff in time for elections. The primary reason being that the Commission has not yet awarded the printing job and therefore all major components of the training exercise is on hold. A poorly trained polling station staff could prove detrimental to the legitimacy of the electoral process should Election Day become chaotic. Several new procedures have also been introduced in the electoral process affecting the electorate’s ability to make an informed decision on polling day. In order to overcome this information deficit, the ECP should engage in an encompassing voter education campaign. Election is only four weeks away and the ECP is yet to embark upon such an information campaign.
 

Media

Media Monitoring. State TV and radio as well as private printed media are being monitored by six media monitors; three in Islamabad and three in the regions. The following are the EUEOMs initial impressions:

a.        State news broadcasts, while clearly heavily controlled, have been covering activities of both pro and anti-government political parties. Current affairs TV programmes often have a balanced range of guests.

b.       The overall tendency is to play down controversial news and promote the efforts of the authorities, including the work of the Election Commission.

c.        A clear anti-BB bias has emerged in several unbalanced news reports on Pakistan television in recent weeks.

Media Environment. On August 31st, the cabinet approved three laws with the following main points:

a.        Both slander and libel are actionable as civil wrongs.

b.       A minimum penalty of Rs 50,000 (approx. 850 Euro) and three months imprisonment in case of non-payment.

c.        The establishment of a 19-member self-regulatory body with four government appointees on it and a new Ethical Code of Practice for the print and electronic media. The Ministry of Information had consulted the All Pakistan Newspapers Society (APNS) and the Council of Pakistan Newspaper Editors (CPNE) – both representing the interests of newspaper owners – on the drafts of the three laws. It said the ordinances were drafted with their full support. However, the APNS rejected this and said it had not approved the laws, parts of which it claimed would violate the constitution and negate the freedom of the press. It called on the government to revise them. Reporters Sans Frontiers, in a public statement on 9th September said it had endorsed these objections in a letter to Information Minister Aziz Memon. The details of these laws are not yet available and it remains unclear whether they have the potential to curb the media in advance of the election. The APNS and NGOs criticized the fact that the long-awaited Freedom of Information Act was not issued at the same time as the other three laws, saying it been agreed with the government that all four laws would be released simultaneously. A Ministry of Information official told the EUEOM this law would be enacted before the election. The printed press is relatively free, although there have been unspecific reports of editors and journalists being asked by the authorities to tone-down or hold stories. In one recent incident, a journalist said his by-line was withdrawn due to pressure from the authorities over a relatively trivial report noting an inaccuracy on an official website in which the word “formation” of political parties was misprinted as “deformation”. There are ongoing and as yet unsubstantiated reports that some journalists either take “bribes” for stories from political parties or the authorities or blackmail people.

Cooperation with Pakistani Authorities, Political Parties and Media

From the very beginning the mission received a very cool reception. At various occasion the MFA, the MoI and the Chief Election Commissioner stated that the mission would not receive a formal invitation and no MoU would be signed. Five weeks after the mission has started its observation work no visible progress has been made on these issues. With regard to provision of security for mission members the MFA, the MoI and the Election Commissioner stated that no support would be given by the Pakistan police. However, when consulting the Governors on provincial level the mission got full cooperation in the Punjab province, the NWFP and Baluchistan (Sindh’s answer is pending) offering police protection whenever required. Unlike in other countries the EUEOM to Pakistan did not yet get an accreditation with the Election Commission of Pakistan (ECP). The mission has been told that such an accreditation would be issued shortly before Election Day. Presently the only means of identification is a card containing the EU logo countersigned and stamped by the MoI on the backside. During the first five weeks the mission met 43 political parties (out of 78 parties and alliances running for election). All parties welcomed the presence of the EU EOM and are regularly interacting with the mission. There has been extensive coverage of the EU EOM’s activities in the print and broadcast media. The CO has issued four press releases and done dozens of interviews. There have been supportive editorials in the English and Urdu press and some negative editorials mainly in the Urdu press. On August 12th several government ministers issued statements accusing the mission of interfering in the country’s internal politics. The CO firmly rebutted this.
 

Security

At the time of writing, security concerns still remain high. Tensions with India are at their lowest ebb, whilst militia and religious fundamentalists are actively operating along the Pak-Afghan border, within the Federal Administered Tribal Areas (FATA) in NWFP, and with the movement of groups from northern Sindh (Southern Province) to central Punjab Province (North of Sindh). To the latter area we have deployed two teams of LTO’s, one to Multan and Faisalabad respectively. Though the cities are relatively safe, the activities and further movement of these terrorist groups in the surrounding areas is unknown. Karachi is a political hot potato due to the popularity of Ms. Benazir Bhutto, leader of the PPP. Discontent towards the Government due to disqualification of Ms. Bhutto, has seen recent clashes, some turning violent, between supporters and the Security Forces. The potential that this can escalate at anytime into larger civil unrest cannot be ruled out. 11th September, is being respected the same way in Pakistan as it is elsewhere in the World. Due to Western interests and Presidents Musharraf’s commitment to eradicating terrorist / religious fundamentalists within Pakistan, security forces have been placed on high alert. International Organisations and all Western Embassies/Consulates are either closing down completely or reducing manning to essential staff on the 10, 11 and 12th September. Regardless of an incident occurring, the aim of disrupting the country will have been accomplished. An additional concern is one of petty crime. Due in country over the forthcoming weeks will be approximately 2400 Internationals related in one way or another to the Elections. Reports suggest that this will be a time of ‘Prize Pickings’ for those criminally inclined. This last week in Islamabad, an international IOM female staff member was apprehended at gunpoint by a would-be thief. Thankfully, she managed to deter the assailant and get away unhurt. Even in Islamabad, seen as the securest location in Pakistan, these incidents can and do occur. The Government has not changed their stance on security for the Mission, reiterating that they are not going to provide specific cover and once again suggesting that we should provide our own private security. They also offered liaison contact for discussion of technical issues. There has however been movement at the provincial level on the issue. The request for a Police Liaison Officer to facilitate the role of ensuring all movements and security issues for each LTO team is addressed and implemented accordingly has been adopted. However, it is far too early to determine whether this coordination is working. To add to confusion on the Governments commitment to our security, reports in the media say that 23 cities have been declared highly sensitive. The Government has ordered law-enforcement agencies to tighten security arrangements during pre election and polling day. Of these 23, eight are LTO base locations, whilst the remainder are locations LTO’s are to visit. Is the National Government indirectly providing security-cover for the Mission? As deployment of the LTO’s is only two days old, it is unreasonable to make a quality assessment of future deployments, additionally, we have not ‘tested’ the National or Provincial Governments commitment to ensure our safety. Long term international security officers have painfully pointed out that though the Police are extremely willing to assist in escort duties, the lack of human and vehicular Police resources have let them down on more than one occasion. The use of private security companies could be an option, but their lack of discipline and training may be more dangerous than with nothing at all. Where many embassies have employed such companies to cover security, this has taken many years of directional training to accomplish credible security cover, this regrettably is one luxury the Mission does not have. The future deployment of LTO’s or STO’s from a security view cannot yet be determined. The protection promised by the government has not been tested, and if failures are to occur within the system, these first days would highlight them. From this present date, a minimal of seven working days would be required to carry out the first assessment based on LTO reports and the Security Advisor assessment, this will leave22 days until the elections. The timeframe to adequately prepare the Logistics to ensure all areas are covered, may result in cutting corners, these corners may be basic security arrangements.

 

Deployment of Additional LTOs - Logistic Aspects

As of Sept. 09th the first group of 22 LTO has been deployed in 9 locations throughout the country. All of them have been provided with appropriate accommodation, vehicle and interpreters. All teams have excellent communication facilities consisting of internet access and fax machine from their room, mobile phone (including SMS system) and satellite phone. Logistical constraints for the deployment of an additional group of LTOs would depend on the new location chosen for deployment. Should 8 or 9 new locations will be selected, and taking into consideration the experiences of the first group of LTOs, one would consider that 7-10 days would be appropriate for the mission to set up adequate logistical arrangements, taking into consideration the need to undertake logistics assessment field trips. Should new LTOs be deployed in the existing LTO locations, one would consider that 3-5 days would be sufficient to organise the arrival of the new group. Should LTOs be roaming LTOs (based in Islamabad and travelling to provinces for some days on an ad-hoc basis), then logistical constraint would be limited, allowing to welcome them in country with only 3 or 4 days notice (recruitment of interpreters, identification of accommodation in Islamabad, rental of additional vehicle for the teams). However, the last option would have budgetary implications (additional travel costs) that must be taken into consideration. There are three possible solutions: one would be to deploy roaming teams; the second, to augment existing teams; the third: to open new locations. Roaming teams would be based in Islamabad, presently phase II under the UN security phases, where the teams would deploy for two or three days to specific locations, and be under the direction of Core Staff. One would be confident to say that security cover would be available for such short durations from the Police. If they were not able to, then the team does not deploy. The second option to augment existing teams is very feasible, though this may fall flat if the Police were unable to cover those teams presently deployed. Regarding the third option the mission is presently assessing the feasibility of opening new locations. Eventually future additional deployment could be a combination of all three types.

http://www.dailytimes.com.pk/default.asp?page=story_1-10-2002_pg7_15