FAFEN sees legal inadequacies in bill on EVMs, expats voting

ISLAMABAD   –  Any effort to amend the Elections Act, 2017 without a larger political consensus will bring into question the legitimacy of future elections, and may cause political instability that can potentially reverse the process of democratic consolidation in Pakistan, says Free and Fair Election Network (FAFEN).  

FAFEN, the non-government organisation, in a statement said that it sees with concern the imbroglio between the government and the opposition parties as counter narrative of the democratic traditions and practices that had seen the treasury always ensuring a political consensus on particularly constitutional amendments and electoral reforms.  

Despite political fragmentation, political parties had developed a consensus on electoral reforms in 2017 after three years of rigorous consultations under the aegis of a multi-party parliamentary committee, it added. “The government must uphold such practices as a way forward on critical amendments to the election law, which are being proposed through Elections (Amendment) Bill, 2020 and Elections (Second Amendment) Bill, 2021. Both these bills have already been passed by the National Assembly without any debate on June 10, 2021.”

Although the Elections (Amendment) Bill, 2020 proposes major changes in the process of delimitation, voter registration, priority-listing of women candidates for reserved seats and political party regulations, the public discourse has only focused on the introduction of electronic voting machines (EVMs) and overseas voting proposed by Elections (Second Amendment) Bill, 2021. Both the bills merit an in-depth discussion among major political parties, whether or not represented in the incumbent parliament and provincial assemblies, for a broad-based consensus as they will have far-reaching consequences on the election system, the statement said.

The responsibility of achieving such a consensus rests with the federal government. The government and political parties should not transfer the responsibility of making political decisions to the Election Commission of Pakistan (ECP) through vague legislative decisions. Dragging the ECP into such controversies will undermine the credibility of future elections and their outcomes. The Parliament should rather invest in strengthening the capacities of the Election Commission through definite legislative measures and appropriate financial resources. Unnecessary criticism of the commission for giving independent reviews/opinions under its constitutional mandate as provided under Article 218 (3) is tantamount to disrespecting the constitution, and falls within the ambit of Section 10 of the Elections Act, 2017.

Of particular concern is government’s aggressive push for the introduction of EVMs and overseas voting without providing adequate legislation catering to the complex questions that are necessary to be addressed before the introduction of any technology at a national scale.  

The proposed amendment allows the ECP to procure EVMs for casting of votes in general elections without detailed consideration of its legal, regulatory and administrative impacts. 

The choice of technology and type of machines to be acquired have been left to the ECP but without a qualification that the technology/machines to be procured should fully respond to the existing provisions of the Elections Act, 2017 viz-a-viz voting and counting processes as provided for in Sections 84, 85, 86, 87, 88, 89 and 90. Any changes in these sections foreseen as a result of the introduction of EVMs should first be enacted in the law.

The election law should not be amended to suit the limitations of technology/machines to be procured, and neither should the voting and counting provisions as contained under Sections 84, 85, 86, 87, 88, 89 and 90 be altered through changes in the rules. Such legal changes may compromise the parliamentary authority over legislation. The proposed amendment is also unclear on whether ECP can procure technology/machines that includes built-in facility of voter authentication and verification as provided for in 84(2) of the Elections Act, 2021. Such technology/machines can compromise the voter secrecy and a voter’s choice may be tracked. In addition, the role of EVM vendors before the initiation of any procurement process should strictly be prohibited.

Similarly, the proposed amendment requiring the ECP to enable overseas Pakistanis to exercise their right to vote in their country of residence is also strewn with inadequacies. The amendment reflects the government’s intention that an IT-based system may be developed with the assistance of National Database and Registration Authority (NADRA), but it has not provided any corresponding changes to the election law that may be required to enable potentially 9.5 million overseas Pakistanis to vote, FAFEN concluded.

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