FAFEN’s review of the Preliminary Report of Delimitation and the List of Constituencies aims to furnish initial recommendations for improvement in the quality of delimitations as well as to encourage an informed public discourse on this critical aspect of the electoral process in Pakistan.

For the complete report, click here

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ISLAMABAD, March 16, 2018: Free and Fair Election Network (ECP) has identified varying degree of discrepancies in the population size of electoral constituencies in fresh delimitation proposals laid out by the Election Commission of Pakistan (ECP).

While ECP has upheld the legal delimitation principles of geographical compactness and respect for the existing boundaries of administrative units, the principle of equality of vote is compromised in as many as 81 National Assembly constituencies where the variation in population size exceeds the ordinarily permissible legal limit of 10%.

Election Rules, 2017 drafted and approved by ECP appeared to have been strictly adhered to but in that process legal principle of equality of vote is compromised. Rules pertaining to delimitation could not sufficiently operationalize the legal principle of equality of vote among constituencies. Law provides for equality among constituencies but Rules have attempted to follow this principle among provinces and districts.

In a detailed analysis of the Preliminary Report and List of Constituencies released by ECP, FAFEN examined the variations found in the population and voter size of the National Assembly (NA) constituencies with regards to the national, provincial and district averages of population and voters per constituency.

Legally, as far as possible, variation in population of constituencies of an Assembly should not ordinarily exceed ten percent. However, the FAFEN analysis reveals that variation exceeds the limit of ±10% in as many as 81 out of 260 National Assembly constituencies which are being delimited in light of the Elections Act, 2017. The Act allows ECP to deviate from this permissible limit in only exceptional cases; however, the reasons for any such deviation must be recorded in the Delimitation Order. The ECP has used this discretionary power in case of around one-third of the constituencies being delimited which goes against the spirit of the equality of vote as stipulated in the Elections Act 2017.

Of 81 constituencies, 59 constituencies have been suggested with a variations rate between 11% and 20% in 59 constituencies, 11 constituencies have variation between 21% and 30%, six constituencies have a higher degree of variation between 31% and 40% and in cases of five constituencies, this variation is exorbitantly high falling between 41% and 50%.

Each of the three constituencies of Islamabad houses a population 14% less than the national average of population per NA constituency. Similarly, the population in Balochistan NA constituencies is also lower the national average while the population size of constituencies in the remaining three provinces is above the national average.

The variation in population sizes becomes even more obvious within provinces. For instance, NA-37 Tank in Khyber Pakhtunkhwa (KP) represents 391,885 citizens, while a population of around 1.2 million in NA-35 Bannu is suggested to be represented by one National Assembly constituency. The power of vote for Bannu people will be less than a half of one to be enjoyed by people living in Tank constituency. Similarly, in Punjab, NA-37 Jhelum-II has been demarcated as a seat with a population of 546,113 citizens, while NA-87 Hafizabad-I has a population of almost 1.2 million- almost double the Jhelum constituency. In Sindh, NA-199 Shikarpur-II has been created with a population of 588,185 citizens, while NA-197 Kashmore represents a population of 1,089,169 individuals. In Balochistan, NA-262 Kachhi-cum-Jhal Magsi has been allocated a population of just 386,255 citizens against NA-268 Mastung-cum-chaghai-cum-kalat-cum-Shaheed Sikandarabad-cum-Nushki that will represent almost thrice of this population i.e. 1,083,497 citizens. Nationally, the Balochistan constituency NA-262 Kachhi-cum-Jhal Magsi is the smallest with regards to the population size while the KP constituency NA-65 is the largest.

The disparities become more visible when ECP’s voter statistics are applied on the suggested constituencies. If ECP’s voter statistics updated in October 2017 are projected on fresh delimitation proposals, the constituency sizes vary between a voter size of 130,000 to more than 600,000.

FAFEN analysis of potential voting population of suggested constituencies suggests that two NA constituencies – one each in Balochistan and KP – will have less than 150,000 registered voters.

On an average, each NA constituency will potentially have more than 364,000 voters; however, the inter-constituency distribution of voters is skewed. For instance, one Member of National Assembly (MNA) each will represent 130,000 voters for NA-262 and 617,000 voters of NA-19 Haripur. As many as 73 NA constituencies will have less voters than national average of voting population per NA constituency and 85 constituencies will have voters above this average. FAFEN recommended the Election Commission of Pakistan to take the deviation from delimitation principle of capping the variation to ±10% seriously and ensure that the citizen’s right to equal representation is respected everywhere in the country.

As many as 19 constituencies – 10 in Balochistan, and three each in KP, Sindh and ICT – will have a voting population between 150,000 and 249,999 voters. As proposed, more than one third of all NA constituencies, 78 to be precise, will have 250,000 to 349,999 voters.  Majority of Sindh constituencies (42 of 61) will have this voting population range. As many as 20 constituencies in Punjab and 13 in KP will also join their Sindh counterparts to have voters in this range. More than half of the overall NA constituencies (138) will have a voting population between 350,000 and 450,000 voters. Overwhelming majority of Punjab constituencies (107 of 141) will fall under this median bracket. As many as 15 NA constituencies will have voters between 450,000 and 550,000 and four constituencies will have more than 550,000 voters.

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Appreciating the Parliamentary Committee on Electoral Reforms for circulating the draft bill for public feedback, the Free and Fair Election Network (FAFEN) believes that the draft bill is a combination of progressive and regressive measures, which may be counterproductive and may not yield the desired result of improving the quality of elections. The bill also does not completely address the structural issues that pertain to the independence, autonomy and authority of the Election Commission. Therefore, FAFEN calls on the Parliamentary Committee to consider a final set of recommendations before submitting the bill to Parliament for approval.

The draft bill is the first unification of all election laws, which FAFEN has advocated since 2007 and highly commends. It includes significant proposed improvements that relate to protection of the authority of the Election Commission, promoting women’s political and electoral participation, establishing permanent polling places, systematic handling of election-related complaints and election result petitions, establishing the right of election observation, as well as providing for legal clarity over the issues such as caretaker governments, local government elections, and declarations and disclosures required by political parties, legislators and candidates.

While the bill adequately addresses some important weaknesses of the election system, it still includes significant defects that must be remedied. Perhaps most importantly, the proposed law does not go far enough in protecting the independence and authority of the Election Commission with regard to the promulgation of procedural rules to administer elections and disqualifying Members who violate rules. The Commission also is not given full control over Returning Officers and have responsibility for critically-important steps in the election process, including candidate nominations and constituency election results.

In addition, the bill improves election transparency in some respects, but punishes anyone who shares election information outside the chain of command, bars media and observers from the scrutiny of candidate nominations, and fails to provide time standards for publication of the most essential election-related documents and data. The election bill includes several positive measures related to women’s participation, but misses the opportunity to establish a legal procedure for collecting sex-disaggregated voting data or take initiatives on behalf of the electoral rights of other marginalized communities, including religious minorities. There is still an opportunity for the parliamentary committee to cure these debilitating infirmities in the draft election bill, 2017.

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The recommendations propose amendments to:

1. Eight sub-clauses and seven clauses of eight articles and two complete articles of the Constitution of Pakistan
2. Twenty-two sub-sections and eight sections of the Representation of People Act (ROPA), 1976
3. Four sub-sections of two sections of the Conduct of General Elections Order, 2002
4. One sub-section and one section of the Delimitation of Constituencies Act, 1974
5. Two sub-sections of a section of the Election Commission Order, 2002
6. Three sub-sections and four sections of the Electoral Rolls Act, 1974
7. One section of the Political Parties Order, 2002

In addition, the recommendations proposes insertion of:

1. Additional provisions in two articles of the Constitution
2. Overhaul of Chapter XII of the ROPA, 1976
3. Additional provisions in nine sections of ROPA, 1976
4. One section of Political Parties Order, 2002

The aforementioned amendments and insertions in the legal framework are covered in as many as 65 measures through 110 interventions. These measures and interventions are spread across fifteen chapters. Each chapter tackles a critical issues area of the existing election framework.

The chapters are arranged in a logical sequence around priority issues. For instance, the first three chapters deal with the composition, appointment, institutional autonomy and accountability of the Election Commission. The next three chapters recommend changes in the legal framework to streamline voter registration and to make the process of delimitation of constituencies and polling scheme equitable, timely and transparent.

The six following chapters deal with the operational aspects of the elections. The chapters propose, the means for objective and transparent candidacy process for both general and reserved seats, allocation of reserved seats on proportional share in votes polled, legally-sanctioned regulation of campaign and political finances of both candidates and political parties, provision for legally-sanctioned and regulated independent observation, transparent election result management and comprehensive dispute settlement mechanism covering all aspects and phases of the elections.

The last three chapters address issues involving the extension of voting rights to overseas Pakistanis and the use of technology in ensuring efficient election management, and advocates the need for bringing together all legal instruments governing elections into one unified election law. The unification of legal Acts and Orders will help remove inconsistencies, discrepancies and contradictions not only in the existing legal framework but will also help prevent the same from happening in the future.

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The report is constituted of three principal sections—sections that offer important building blocks for a comprehensive electoral reform process.

Section I – Unifying Pakistan’s Election Legislation: A first section provides an accumulation of a currently inaccessible and fragmented set of laws making up the country‘s election legislation. The section not only offers an assessment of the benefits of unifying this legislation into a single Act, but constructs a Unified Election Bill based on present election-related Acts and Orders while providing decision makers with an important tool by which this Bill can be made into law. Perhaps of greatest importance is that the drafters of the Bill were issued specific instructions to unify the country‘s current legislation without altering its content. To the greatest extent possible, the Bill offers an accurate representation Pakistan‘s current electoral legislation.

Section II – 18th Amendment Changes to a Unified Bill: In March 2010, the Parliamentary Committee on Constitutional Reforms issued its draft of the 18th Amendment to the Constitution proposing more than 100 changes to the Constitution. With its passing, the 18th Amendment introduced a series of changes that require reform within the country‘s current election-related legislation. A second section of this report focuses on the changes to legislation dictated by the 18th Amendment and applies them to the Unified Election Bill constructed in Section I of this report, offering another tool to facilitate the unification of Pakistan‘s election legislation.

Section III – Proposed Revisions to a Unified Election Bill: A final section turns to the content of the current election legislation as presented within the Unified Election Bill as developed in Sections I and II in order to recommend changes to election law that augment its consistency with both best practices in election administration and international legal obligations. Section III offers a series of model provisions within twelve parts of the electoral process, advocating for the implementation of these provisions by offering clear justification for why each should become part of Pakistan‘s election law.

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While FAFEN and other election-related institutions argue that wholesale election law reform is required— change that would lead to a legal framework that reflects best practices in election administration and is consistent with international standards—FAFEN has prioritized within this discussion paper the reforms that could have a timely and tangible impact within the law as it currently stands.

This discussion paper offers two overarching reform areas within which a number of reform “themes” are offered.

In the first section, the paper outlines specific priorities for strengthening the current institutional arrangement for three electoral stakeholders in Pakistan — the Election Commission, political parties, and election observers, arguing three themes for change within election law, including:

• Fortifying the independence of the Election Commission of Pakistan (ECP) (Theme 1);
• Increasing transparency and accountability among political parties and candidates (Theme 2);
• Regularizing access to electoral processes for election observers (Theme 3);

In the second section, the paper offers specific priorities for improving the country’s electoral processes in the context of polling stations, the electoral rolls, and election results, with four themes for change being considered, including:

• Reforming rules for representation (Theme 4);
• Enhancing the quality of and access to electoral rolls (Theme 5);
• Revising the process for establishing polling sites (Theme 6); and
• Ensuring polling station-wise results are publicly available in a timely manner (Theme 7).

The final section may be of greatest benefit to legislators as they consider how the reforms proposed in the first two sections might tangibly be instituted within the law. The paper offers cross-referenced tables that provide proposed amendments to the election law in its current form.

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Almost 16,000 FAFEN Polling Station Observers (PSOs) witnessed and recorded the counting of ballots in a statistically-valid sample of 7,778 randomly-selected polling stations in 260 National Assembly constituencies. An additional 3,000 Mobile Observers (MOs) helped transport the “Statement of the Count” and PSO checklists from polling stations to CCs. Each CC compiled the polling station data on standardized forms and faxed these PVT election results to the FAFEN Secretariat in Islamabad.

The purpose of a PVT is to compare the observed vote count in a sample of polling stations with the compiled election result for that constituency in order to provide evidence that confirms or disputes the official election result. A PVT does not take account of other aspects of the election process, such as pre-poll violations of the Code of Conduct.

However, FAFEN has combined its PVT data with evidence provided by polling station observers of problems they witnessed first-hand on Election Day, such as party agents or polling officials stamping ballots. These observations often substantiate the anomalies that FAFEN has found in the quantitative PVT election results data.

This combination of quantitative PVT data and qualitative Election Day observations has enabled FAFEN to produce three unique “Election Result Analysis” reports between March 9 and May 7, 2008. These reports are compiled in this publication, along with samples of FAFEN’s PVT data and graphs for several constituencies. All of the reports and graphs are posted at www.fafen.org.

FAFEN Election Result Analysis-I provides a detailed description of FAFEN’s PVT methodology and the challenges FAFEN faced, and includes data for 33 constituencies. FAFEN Election Result Analysis-II presents data for 174 constituencies along with detailed recommendations for electoral reform. FAFEN Election Result Analysis – III compiles data and observations from the 20 National Assembly constituencies in Karachi and offers additional recommendations.

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Many of these recommendations are documented in four FAFEN Election Results Analysis reports, three FAFEN preliminary statements immediately on and following Election Day, 19 FAFEN Election Updates, the “Flawed but Fixable” voters’ list audit report, a dozen other pre-election publications, and “Election Observation Summary & Recommendations for Electoral Reforms (Submitted to the Electoral Reform Committee on June 21, 2008)”.

All FAFEN documents can be found at www.fafen.org. Additional recommendations are based on FAFEN’s continuing analysis of its extensive election observation data from February 18, 2008. These additional recommendations are presented in blue lettering.

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