The rule was made watertight but the problem has persisted in all later elections.

The
Election Commission of Pakistan (ECP) had to issue a directive, one month after the
polling in 2!", asking the returning officers to make the forms publicl# available. $ut
this was simpl# not followed in man# cases.
%aking the rules impregnable is onl# half the &ob done' it is the other half ( their
implementation ( that is where the real problems lie. There are two ma&or drags on the
ECP)s resolve and capacit# to implement the law and deliver credible and non*
controversial elections.
+irst is the ECP)s relationship with the &udiciar#. Conducting elections is first and last an
administrative &ob, and those who are &udges b# training and description do not ,ualif# to
perform it. The misconception about their proficienc# probabl# originates from the
constitutional provision that calls for appointing retired &udges as election commissioners.
The underl#ing sense is that since &udges are perceived as non*partisan, elections under
their leadership will be non*controversial.
+ormer president -hulam .sha, /han improvised upon this to hand over constituenc#*
level duties to &udicial officers as well, in the !011 elections. 2ince then, seven elections
have been held practicall# b# the &udiciar# under the same scheme but ironicall# none
escaped being tainted. The writing on the wall is that the e3periment has failed' and this
must be acknowledged and corrected.
The administration of elections b# the &udiciar# also forms a clear case of conflict of
interest because as an institution, it administers these and then itself ad&udicates upon
conflicts arising out of their administration. 4cknowledging this, the 5ational 6udicial
Polic# %aking Committee had in 20 decided not to lend its personnel to the ECP but
retracted its decision before the 2!" elections in the 7larger national interest).
The involvement of the &udiciar# in elections has confused two separate constitutional
spaces reserved for two different constitutional bodies. .t has made the elections appear
like an au3iliar# function of the &udiciar# while the &ob of the ECP has been reduced to
issuing notifications, directives and statements.
.n this confusion, the Election Commission has lost its freedom to make decisions and
act. The two functions not onl# need to be separated from each other, the ECP also needs
some kind of immunit# from &udicial intervention. Elections are a time*bound e3ercise
and their administrators need abilit#, agilit# and creativit# in order to be able to respond
to an# unpredictable situation at an# hour. .f solutions are to be sub&ected to long
procedural dela#s, the# are bound to prove useless.
The second most important area where the ECP needs to be empowered is its control over
the civil administration. .t needs the services of an arm# of government emplo#ees to
perform duties at the polling station level. .t needs to wean these seconded personnel off
an# political affiliations, guard them against threats of violence from vested interest
groups, check an# negligence on their part and make them work efficientl#.
8eveloping other stakes in civil administration is important as peace and order in societ#
are a prere,uisite for elections. The ECP also needs the support of all government
departments, including the law*enforcement agencies to ensure that the Code of Conduct
for pre*election campaigns is strictl# followed, that voters are not bribed or coerced, and
that there is a level pla#ing field for all contestants.
The ECP has not been able to ensure all of this to the satisfaction of the parties. 9ne
likel# reason is that this area too is contested b# two constitutional bodies, the ECP and
the caretaker government. The# are both entrusted with the same responsibilit# of
ensuring neutralit# in government. This duplication not onl# creates confusion but also
works as a disincentive for the ECP to take the initiative, besides allowing the two to
blame failures on each other.
.nterim set*ups have traditionall# served as a constitutional window for the establishment
to intervene in the electoral process. The s#stem of appointment was changed
substantiall# through the !1th 4mendment but caretaker set*ups too have failed to meet
e3pectations.
The ECP thus needs a new legal framework for its engagement with the civil
administration. There is no harm in taking a leaf from the .ndian e3perience where no
caretakers are appointed and the election commission virtuall# takes over the entire state
machiner#, as soon as the election process begins and until the results are announced.
The Electoral :eforms Committee will have to avoid indulging in rephrasing old laws
and show some creativit#. :eaders should be reminded that Pakistan achieved an
important milestone in its first*ever democratic transition, from one elected government
to the ne3t, in 2!". The subse,uent milestone should not be the ne3t transition but
electoral reforms as onl# these can take polls and democrac# a ,ualitative step forward.
The writer works with Punjab Lok Sujag, a research and advocacy group.
Published in Dawn, July 2th, 2!"#
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