available languages: english March 23, 2018

Is it right to stop the committee from discussing the delimitation results? The ECP’s mandate is grounded in the concept of the separation of powers. It is an independent institution, but so is the parliament.

By Hassan Nasir Mirbahar (DRI Pakistan Country Representative) 

The Election Commission of Pakistan (ECP) has reportedly attempted to stop the National Assembly’s Special Committee on Delimitation from looking at delimitation, terming it an interference in the Commission’s mandate. With heated discussions taking place on the preliminary delimitation results, the Assembly had allegedly considered such a committee helpful in communicating parliamentarians’ concerns collectively to the Commission, so the general elections can take place in time. The intention seems good, as a way of reducing individual cases that can delay the elections.

Is it right to stop the committee from discussing the delimitation results? The ECP’s mandate is grounded in the concept of the separation of powers. It is an independent institution, but so is the parliament. The separation of powers has many nuances that should not be left to legal interpretation alone. There needs to be a balance between the parliament’s and the Commission’s respective powers, so that each can serve as a check on the other.

But, how can this balance be achieved? To answer this question, we should first understand two related questions.

First, why is there a need for an independent body like the ECP to delimit electoral boundaries?  Historically, parliaments have been involved in drawing, reviewing and approving delimitation of electoral boundaries. Even today, many parliaments draw constituencies such as in Belgium, Bulgaria, Croatia, Finland, Sweden and the United States of America. But parliaments’ direct involvement in boundary delimitation often results in gerrymandering. Indeed, many analysts believe that one reason for the extreme political polarisation that weakens the US elections is the role the two political parties play in electoral districting; with the result that many districts are not really competitive. US electoral districts are often dominated by supporters of one party and therefore candidates do not verge to the centre to appeal to both sides.

ECP can create possibilities to give the Parliament an opportunity to provide the Commission with suggestions on delimitation. The Election Act 2017 empowers the ECP to issue rules and define any elements which are not covered by the law.

This has led to growing international trend that independent bodies should delimit the constituencies to keep political self-interests outside such an important exercise. Hence several countries have transferred boundary delimitation power to independent election management bodies like the Commission or separate dedicated delimitation commissions, like in India.

Pakistan’s constitutional development and court decisions also support such an independent arrangement for delimitation. The 18th and 22nd constitutional amendments and the recently enacted Election Act 2017 have increased the ECP’s independence, including its powers with regards to delimitation. In 2014, the Sindh and Punjab governments had delimited constituencies for their respective local governments. Opposition parties had challenged these delimitations in higher courts alleging gerrymandering and inequality of vote — which means that votes of citizens did not count equally across constituencies. Based on these arguments, the courts set aside these delimitations and directed respective provincial governments to give delimitation power to the ECP. These rulings affirmed that such functions should be performed by an independent body like the ECP to keep delimitation free of any political influence. Such powers were later accorded to the ECP.

This leads us to our second related question namely: does the independence of such institutions responsible for delimitation mean they should be free from any questioning about their performance or the outcome of their work? There is a simple answer: no. Independence means that these institutions are mandated to organise and regulate their work and they should have sufficient resources made available to them. As they are public bodies and use public money, they are of course still accountable to the public or their chosen representatives. Therefore, their independence should be balanced through adequate accountability measures.

Citizens are main stakeholders in any elections and as representatives of the people, parliaments are therefore an appropriate forum for discussing the work of election management and delimitation bodies. Parliaments have a role in scrutiny, but of course, they cannot direct an independent institution. Indeed, a public, fact-based parliamentary review of preliminary delimitation proposals may even help institutions like the ECP. It could streamline responses and could help generate constructive and informed discussions. But parliamentarians may also have self-interests, hence they should not give instructions, but only recommendations. The purpose of such parliamentary engagement should be to improve the functioning and increasing public trust in these institutions.

Globally, parliaments and parliamentary committees play varying roles in scrutinising the work of independent election management bodies, such as in Australia, Canada, New Zealand and South Africa. In these countries, the election commissions submit their annual progress reports to parliaments. Similarly, the Election Act 2017 requires the ECP to submit its annual progress reports to the parliament and the provincial assemblies via the federal government. Besides, the Senate and National Assembly Standing Committees on Parliamentary Affairs already have the mandate to look into matters related to the ECP.

But Pakistan’s parliament has no formal role in delimitation under the Constitution or the Election Act 2017, so how can it play any role in delimitation? Neither the Constitution nor the Elections Act explicitly precludes the parliament from discussing delimitation. In fact, in the spirit of separation and balance of powers, the Constitution empowers the parliament to organise its own work as it sees it fit within the constitutional framework.  Therefore, the parliament can still discuss the preliminary results of the delimitation while respecting and without intruding in the ECP’s mandate.

Yet, ECP can create possibilities to give the parliament an opportunity to provide the Commission suggestions on delimitation. How can that happen? The Election Act 2017 empowers the ECP to issue rules and define any elements which are not covered by the law. Through this provision, the parliament has afforded the ECP power to innovate and to adapt to changing circumstances. With such broad powers, the ECP can discuss the delimitation with the parliament and hear their comments. Such discussions do not compromise the ECP’s independence and mandate, as the Commission has the final authority to make decisions on revising delimitation.

Whether this happens or not, both institutions should respect each other’s constitutional mandate. As the National Assembly’s special committee continues to work, it could also make their analysis public which citizens might be able to use in their submissions to the Commission.

Such innovations and respect for each other’s independence will contribute to increasing public trust in the ability of both institutions to resolve disputes in an amicable and respectable way. More importantly, it can also help improve transparency and confidence in the delimitation process, thereby potentially reducing any chances for any delay in the general election.

This op-ed was originally published in Daily Times. 

Photo credit: Wikimedia Commons