IANALYSISI

What makes scrutiny of election candidates controversial

a BY AHMED BILAL MEHBOOB

Candidates submittheir nomination papers to the returning officer at an election commission office I PliOTO BY ARJF A !.I, IV BITE STAR

very election season, some people are very Islam". The problem is that there is no law or rule that surprised when they come to know through the clearly lays dovm how to judge a candidate on the basis of media that a returning officer (RO) has asked a these parameters. ROs, therefore, keep appfying their own candidate for a National Assembly or provincial methods for the scrutiny of nomination papers submitted assembly seat to read out from some chapter of the Holy by cand idates. Quran. In other instances, the candidates have been told This scrutiny is an integral but quite contentious part to recite a particular prayer (often it is the dua-e-qanoot) of the electoral process. Its objective is to establish that from memory. Sometimes, ROs even ask candidates how a candidate conforms to the qualifications prescribed in many times a day they go to the mosgue to pray. Article 62 of the Constitution. It is also meant to ascertain No matter how bizarre all these questions may appear, whether a candidate is disqualified from becoming a ROs are in fact trying, in accordance with constitutional member of the national or provincial legislatures as per provisions, to make sure that candidates meet the criterion the provisions laid out in Article 63 of the Constitution. of having "adequate knowledge of Islamic teachings" There are a total of seven qualifications listed in Article and are practicing the "obligatory duties prescribed by 62 that a prospective member of a national or provincial

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assembly is required to possess. Four of these are specific and, therefore, relatively easy to establish: a candidate This time around, the must be a Pakistani citizen; he or she must have attained a minimum age of 25 years; he or she must be enrolled information did become available as a voter; and, most critically, there must be no adverse ruling against him or her as far as honesty and integrity online but only after a lot of are concerned. This last provision has been a subject of great delay - and that too because of controversy. In recent times, former prime minister Nawaz Sharif and former secretary general of the the hue and cry in the media. Tehreek-e-Insaf (PTI), Jahangir Tareen, both have been disqualified by the Supreme Court from being members of a legislature under this particular provision. PTI chief Commission of Pakistan via email or fax on a daily and former federal minister Sheikh Rasheed basis. Secondly, the online scrutiny cell fed the received Ahmed, on the other hand, have escaped disqualification information into a purpose-built software and shared it after petitions were heard by the apex court on allegations with various relevant state entities for verification and that they, too, had violated this provision. feedback. The third step required different entities such The other qualifications are rather difficult to as the National Database and Registration Authority establish. These include: to be "of good character and (NADRA), Federal Board of Revenue (FBR), National ... not commonly known as one who violates Islamic Accountability Bureau (NAB), Federal Investigation injunctions"; to have "adequate knowledge of Islamic Agency (FIA), State Bank of Pakistan (SBP) and gas and teachings", to be practicing the "obligatory duties electricity companies to cross-check the information with prescribed by Islam"; to have abstained from "major their own records and then share their feedback with the sins"; and to have not "after the establishment of election commission that, as the fourth step, sent this Pakistan, worked against the integrity of the country feedback to the ROs. or opposed the ideology C>f.·Pa~stan". This entire process kicked off on June 4 when ROs It is generally these non-specific provisions ~at place ROs, started receiving nomination papers and continued election h·ibunals and superior courts in a rather difficult till June 19, the last designated date for scrutiny. ROs position during the scrutiny of election candidates. around the country received a total of 21,482 nomination Article 63 lists 16 parameters that disqualify a person papers. Out of these, 5,473 were filed for the 272 general from being a member of the national and provincial constituencies of the National Assembly - with an average assemblies. Almost all of these are specific and thus of slightly over 20 nominations per constituency - and possible to establish. 13,693 were received for the 577 constituencies of the four The above- mentioned qualifications and provincial assemblies - with an average of slightly less disqualifications primarily set the scope of scrutiny than 24 nominations per constituency. by ROs, who are usually taken from the district-level Various entities flagged 15,176 nomination papers for judiciary and guided in the scrutiny process by Section 62 various problems: the FBR pointed out that 6,817 nominees of the Election Act, 2017. Appeals against their decisions were not registered under the Income Tax Ordinance, are lodged at appellate tribunals that work under Section 2001, and 5,971 had not filed their income tax returns; 63 of the same law and consist of high court judges. the PIA reported 123 candidates to be dual nationals; the The process of scrutiny commences as soon as an SBP stated that 383 of them had defaulted on their bank RO receives nomination papers but, over the years, it loans; and phone and gas companies reported that 1,823 has become a multipronged process. At one level, ROs nominees were their defaulters. undertake the scrutiny themselves to the extent they Still, everything did not go smoothly. Some of the can manage. In addition, they seek input from a number information the state entities provided was not updated. of state entities through the Election Commission of Former chief minister Murad Ali Shah and former Pakistan- a process that has been rather haphazard in PTI member Fauzia Kasuri had relinquished their dual the past. This time, however, it is being managed through citizenship long ago but their names were still included a specially prepared online computer application that in the FIA list. Many other candidates who were stated helps ROs share a candidate's personal information with to have defaulted on loans and reported to have unpaid various entities of the state and receives their feedback utility bills were later able to prove otherwise and were, through the scrutiny cell of the election commission within thus, allowed to run for election - the most famous the deadlines set by the election schedule announced case being that of former National Assembly speaker Dr by the Election Commission of Pakistan. The online Fehmida and her spouse Dr Zulfiqar Mirza. application has also ensured relatively better accuracy of The third prong of scrutiny was carried out based the information exchanged. on the objections raised by voters about candidates. To The online scrutiny was undertaken in four steps. facilitate this, the contents of each nomination paper and Firstly, ROs transmitted information about candidates in its attachments (such as statements of assets and liabilities) a specific format to the online scrutiny cell of the Election were made public at RO offices in each district.

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QUALIRCATIONS FOR MEMBERSHIP TO NATIONAL AND PROVINCIAL ASSEMBLIES

1 Otizen of Pakistan NAf>RA/FIA

Good

Sagacious; righteous; non-profligate; hon~ Vague; RO can establish A oourt of law with the 5 62.(1Xf> ameen; there being no declaratioA ~nst in light of oourt jurisdictien the

The nomination papers made public included 19 from an unrecognised university. A provincial assembly different declarations about things such as educational candidate of the (PPP) in Badin qualifications, occupation, businesses owned, total income district, Yasmin Shah, was not allowed to run for election and taxes paid in the past three years, pending criminal because in a previous election she had submitted an offence cases, details of foreign travel during the past three educational certificate that was found to be fake. years, donations made to or received from a political party In the true SJi>irit of transparency, nomination forms and names of spouses and dependents. and their attachments, including the affidavits, should be Originally, the Election Act, 2017 exempted election uploaded to the website of the election commission as soon candidates from having to submit these declarations, but as they are submitted, so that voters can gain access to the they were restored partly due to criticism by the media information about candidates and raise objections within and civil society and ultimately on the orders of the the time allocated by the election schedule for scrutiny. Supreme Court. The declarations were submitted through This uploading is also important because constituencies in a separate affidavit attached to the nomination papers, Pakistan are quite large - an average National Assembly rather than as part of the nomination papers themselves constituency has a population of around 780,000, with voters as was the case in previous elections. alone numbering around 390,000. It is very difficult for such a Some of these declarations contain information that large population to have physical access to information about can be critical for voters to make up their mind about candidates. Not every voter will be able to reach the office a candidate. The details disclosed in these declarations, of an RO to have a look at the nomination papers and other therefore, have generated a lot of interest. For instance, it declarations contained there. was the first time that people came to know that many This time around, the information did become available known politicians have two or more wives. online but after a lot of delay - and that too because of Although none of this information in itself constitutes a the hue and cry in the media. A number of candidates and reason for qualification or disqualification, misdeclaring influential politicians resisted its availability as much as it has led to serious consequences for many candidates. they could on the grounds that this information should Consider the case of educational qualifications. There be brought online only once a candidate has already is no minimum education requirement for an election been given the official go-ahead to contest elections. The candidate, but if he or she states to have a certain counterargument is that the scrutiny period would be over qualification then he or she has to substantiate the by then, and voters would not be able to raise objections statement by showing a degree issued by a government­ before elections. recognised institution. This perhaps explains why Statements of assets and liabilities submitted by television show host Aamir Liaquat Husain stated that candidates also generated a great deal of interest. This his qualification was a BA only, not mentioning the is because they offer a rare peep into the lifestyle of the doctorate degree that he is reported to have obtained aspiring and elected legislators. Choice agricultural land,

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DISQUALIFICATIONS FOR MEMBERSHIP TO NATIONAL AND PROVINCIAL ASSEMBLIES

Acquired foreign citizenship; ceases ' 3 63(1)(c) NADRA/FIA Specific; easy to establish to be a citizen of Pakistan

In service of agovernment-owned Specific; easy to establish in light of s 63(1)(e) statutory body various constitutional provisions

Convicted by a court for acting against ideology of Pakistan or 7 63(1Xg) independence ofjudiciary or Specific; easy to establish defames judiciary or armed fort:es (unless Syears elapsed)

Dismissed from service of Pakistan Establishment Division; 9 63(1)(i) Specific; easy to establish (unless Syears elapsed) provincial governments

residences spread over hundreds of square metres, luxury The revised statements under the current law contain vehicles, foreign properties, gold and cash owned by only one column that requires mentioning the "Cost of candidates and their immediate family - all this suddenly the Asset". Legal experts generally regard the term 'cost' becomes public knowledge. The statements also highlight as the original purchasing price of an asset but different discrepancies in cases where the opulent lifestyle of a candidates have interpreted it differently. candidate does not seem to match his or her income. The This explains why Bilawal House, the residence of PPP famous instance of a party chief always seen riding in chief Bilawal Bhutto-Zardari, is stated to have a value of an expensive vehicle, but stating to have not owned it, only three million rupees though its market value may be has been one of the most talked about topics during the 100 times more. Bilawal's nomination papers, however, scrutiny process this election cycle. were accepted without any election forum objecting to A major issue that has made these statements rather the stated value of his property. confusing is the failure to lay down an unambiguous rule A different view was taken in a different case. for evaluating the price and cost of assets and liabilities. An appellate tribunal judge rejected the nomination Before the passage of the Election Act, 2017, these papers of former prime minister Shahid Khaqan Abbasi for a statements had two columns: one indicated the original National Assembly seat in Islamabad. The judge disqualified price of an asset (which may be its purchase or transfer Abbasi for life for misstating the value of a home in the price); the other showed the present value of an asset. federal capital that he had inherited from his father.

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due to the shortage of time. For the upc<:>ming election, The statements also highlight 21 appellate tribunals were formed to exclusively deal with the appeals against ROs' decisions. (These tribunals discrepancies in the cases where sheuld net be eenfused with election tribunals, which are formed t0 deal with election petitions after an election.) the opulent lifestyle of a 0nly five days were available to appellate tribunals to dedde appeals. candidate does not seem to Most appeals were filed by candidates against the match his cr her income. rejection of their papers. Several others were filed by opposing candidates and voters against the acceptance of the nominatil'>n pajilers ef a certain candidate, increasing the workload of the tribunals further. Many lawyers believe the statements have a setmd Though the process of accepting or rejecting format as far as purchased assets are concerned. A nomination papers n0tmally ends with the decisions candidate can provide the purchase value of an asset, of appellate tribunals, writ petitions against their showing proof as to when it was purchased and at what decisions are sometimes also filed before high courts. price. But the forms leave it to candidates to evaluate their Shahid Khaqan Abbasi took this route to have the inherited assets. In the latter case, all given values can be tribunal's decision against him overturned in order to arbitrary and discretionary unless a government agency run from his Islamabad constituency. assesses the assets and certifies their values. A few cases even made it to the Supreme Court. This confusion could have been avoided by adding an Just to quote one exam}i'le, PTI's Balochistan chief, explicit and clear definition of the 'cost' of an asset in Yar Mohammad Rind, moved the apex cemrt against the declarations. A well-staffed political finance division the rejection of his nomination papers and was finally within the Election Commission of Pakistan under the allowed to contest the election, only 20 days before guidance of a professional chartered accountant/ auditor the polling. would have also made it easy to carry out a meaningful India, a country that has a much longer history analysis of the statements of assets and liabilities. This of conducting elections than Pakistan, does not division could have scrutinised not only the statements allow appeals against decisions made by ROs. Even submitted by election candidates but also those filed by superior Indian courts normally do not entertain an elected legislators every year. appeal regarding the electoral system once the election schedule is announced. Pakistan, on the other hand, he performance of ROs during scrutiny was better is extremely generous to its election candidates. This for this election than for previous electiens. At generosity only places an extra burden on the already times, however, it appeared that they needed overworked electoral and legal institutions. to be better familiar with the Election Act, 2017 Though the legal framework governing Pakistan's and its specific provisions related to scrutiny. One RO in electoral system is very elaborate and has ample inbuilt Lahore was heard on video asking Maryam Nawaz Sharif provisions for the sGrutiny 0f a candidate's credentials, if she had any solution for the water crisis facing Pakistan. some im}i'roveme.nts in the execution of laws are still This was certainly a case of stretching the process beyond required. Most important of these is the need to either its legal scope. Members of the appellate tribunals would omit or specify certain vague qualification requirements also have been better informed if they had received a to be a member ef a legislature, as listed in Article 62 quick training. That could have prevented a tribunal from of the Constitution. This change will help ROs easily disqualifying Shahid Khaqan Abbasi for life since the adjudicate on these re

56 HERALD July 2018