With due reverence, I appreciate the democratic political initiative taken by the Senate of Pakistan under your leadership to consider reforms in election laws before the next General Elections in 2013. Equally appreciable is the Committee’s gesture to hold this ‘Public Hearing.’ I honestly believe that electoral reforms primarily belong to political and parliamentary realm and civil society perspectives can supplement your work.
I represent Centre for Civic Education Pakistan that is working on issues related to democracy and federalism since 2002. Regarding elections we have a specific interest in “Political Finance Reforms’ to make Pakistani democracy inclusive and participatory, especially for those who are with less financial resources.
Our arguments are anchored in a fact that Pakistan signed United Nations Convention against Corruption on 9th December 2003 and ratified it on 31st August, 2007 which says that:
* Each State Party shall also consider adopting appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to prescribe criteria concerning candidature for and election to public office.
* Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.
* Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.
It is in this context that I am pleased to submit for the consideration of the Committee following submissions;
(A) Political Party Finance:
- Political parties are the most important institution that enriches nation’s democratic experiences. Currently they are regulated through the Political Party Order-2002. This law was promulgated by a military dictator without any debate and discussion among stakeholders. The Parliament must revisit this law as it has broken many parties instead of facilitating development of democratic political culture in the country.
- According to Political Party Order-2002 and Article 17 i.e. Right to Association of Constitution of Pakistan-1973, the political parties are accountable for their sources of funds. The political parties have to submit annual audited accounts by August 29 every year to fulfill a legal requirement to qualify for an election symbol. Clause 13 of the Political Parties Order, 2002 and Rule 4 of the Political Parties Rules, 2002 require every political party to maintain its accounts indicating its income, annual expenditure, source of funds, assets and liabilities to be submitted to the Election Commission within 60 days after the end of a financial year.
- According to clause 6 of the Political Party Order;
(1) A member of a political party shall be required to pay a membership fee as provided in the party’s constitution and may, in addition, make voluntary contributions towards the party’s funds.
(2) The contribution made by members or supporters of any party shall be duly recorded by the political parties.
(3) Any contribution made, directly or indirectly, by any foreign government, multi-national or domestically incorporated public or private company, firm, trade or professional association shall be prohibited and the parties may accept contributions and donations only from individuals.
(4) Any contribution or donation which is prohibited under this Order shall be confiscated in favor of the State in the manner as may be prescribed.
Explanation: For the purpose of this section, a “contribution or donation” includes a contribution or donation made in cash, kind, stocks, hospitality, accommodation, transport, fuel and provision of other such facilities.
Recommendations:
(a) The Parliament must revisit the Political Party Order 2002.
(b) The restrictions imposed in clause 6 of the Political Party Order 2002 shall be revisited to allow associational donations in a transparent manner.
(c) The law is silent about any limit on donations which in our understanding does not auger well for seeking ‘clean resources’ for political process.
(B) Election Campaign Finance
The second issue that we would like to flag pertains to ‘individual candidate’ electoral expenses. The Representation of Peoples Act-1976 defines them as expenses that are made on campaign from the time when nomination papers are submitted to the day after polling. It does not include the amount of (Rs. 4,000) for National Assembly and (Rs. 2,000) for provincial assembly deposited as security for participation in election. Legally an individual candidate can spend up to Rs. 1,500,000 for a National Assembly constituency and Rs. 1,000,000 for a Provincial Assembly constituency. According to the Senate (Election) Act, 1975 maximum ceiling is PKR 1 million. While the Senate election is an ‘indirect election’ and in a party-based polity this ceiling appears to be on a higher side.
For the National and provincial assemblies election the law says, where any person incurs any election expenses on behalf of such candidate, whether for stationery, postage, telegrams, advertisement, transport or for any other item whatsoever, such expenses shall be deemed to be the election expenses incurred by the candidate himself/herself. The law requires that the candidate has to keep the record of billing through receipt if amount is Rs. 500 or more.
After the Supreme Court verdict in the Constitutional Petition No. 87 of 2011, [Workers Party Pakistan vs. Federation of Pakistan and others], these conditions have been made further stringent. Like getting services only from GST number holding vendors, ban on voter facilitation camps and provision of transport.
As per the Law Returning Officer has to keep the record of electoral expenses for one year that would be asked anytime for inspection or the copy of whole document of expenses. The law also restricts the candidate to provide transport facility to any voter except his/her family. Selling and buying of vote is also a crime. To make violations of these provisions a cognizable offense sections A-J of clause 171 of Pakistan Penal Code deals with election related offenses.
Recommendations:
We need to rationalize election expenses ceiling to accommodate inflation and changed campaign culture. The current ceiling is not enough to send even a letter to all voters in any constituency usually comprised of 250,000-300,000 plus voters in a National Assembly constituency. According to our research a conservative estimate for a modest campaign is in the range of PKR 20-25 million for a national and PKR 12-15 million for a provincial constituency. (Annex: 1)
Secondly the entire legal regime controlling Political Party or Election Campaign Finance is silent about any limit on expenditures by political parties. Whereas they arrange rallies, organize centralized publicity campaigns and facilitate paid political broadcast etc. According to the research by the Centre during Election-2008, there were 36,339 paid political broadcasts/adverts by various political parties on 38 channels (13% on PTV and 87% on private channels). Their estimated cost against the announced tariff of the channels was PKR 539.26 million. The legal regime must address this issue.
Thirdly we monitored the implementation of the Code prepared by the Election Commission of Pakistan (ECP) after the Supreme Court verdict for bye-election in NA 151 (Multan) and found it pretty unrealistic. In absence of decent public transport system, the Code disfranchised those who don’t have their own transport. Therefore the Parliament must come up with a set of realistic reforms. Option of Public Funding shall be explored. At initial stage it could be in kind (Toll-Free Phone, postage, media access on Public Service Broadcast, etc).
As per the Law Returning Officer has to keep the record of electoral expenses for one year that would be asked anytime for inspection or the copy of whole document of expenses. This clause must be amended and at least the expenditure statement of winning candidates must be made available with the ECP for a longer period for analysis and scrutiny. These details shall also be available on the ECP website.
The punishments prescribed for violations of electoral laws are very weak (fine from PKR 500 to PKR 5,000 and imprisonment from six months to three years), whereas the fine for boycotting a referendum is PKR 500,000 or imprisonment up to three years. This aspect must be rationalized.
C. Some other points:
- The Parliament has reformed the Constitutional framework for Elections and the Election Commission of Pakistan through the 18th and 20th Constitutional Amendments, but the corresponding subordinate legislation is old. It is a time to reform it in the light of new constitutional changes.
- The 18th Amendment Committee, recommended to the Executive branch that the Election Tribunal shall complete trial in electoral disputes within 90-day. This recommendation must be implemented.
- The Charter of Democracy (2006) inked by Shaheed Mohtarma Benazir Bhutto and Mian Mohammad Nawaz Sharif calls for creation of National Democracy Commission. According to the Article 25 of the Charter, “National Democracy Commission shall be established to promote and develop a democratic culture in the country and provide assistance to political parties for capacity building on the basis of their seats in parliament in a transparent manner.” A well thought out Commission can help address many issues pertaining to Political Finance in Pakistan.
We honestly hope that the Committee will give due consideration to our submissions.
With warm regards
Zafarullah Khan
Executive Director
Centre for Civic Education Pakistan