The Election Commission of Pakistan (ECP) prepared a package of amendments to the Representation of the People Act, 1976 (LXXXV of 1976) and forwarded it to the Federal Ministry of Law, Justice and Parliamentary Affairs on January 23, 2013 for further processing through the Cabinet and the Parliament. The package consists of 24 amendments.

The Representation of the People Act is probably the most important and comprehensive law among the election-related laws of Pakistan. The Act comprises 119 Sections. The proposed package of amendments seeks to amend 31 sections, omit two (2) and insert three (3) new sections in the Act.

Some of the proposed amendments are purely procedural and technical with no substantive impact. Some of such proposed amendments seek to refine the language of the law. The remaining proposed amendments can be categorized as follows:

1. Amendments meant to further empower the ECP
2. Amendments aimed at increasing the amounts of fines for certain offences
3. Amendments meant to further empower the District Returning Officers (DROs) and Returning Officers (ROs)
4. Amendments proposing increase in the Amounts of Deposits by the candidates for the membership of National and Provincial Assemblies and increasing the threshold of votes at which the forfeiture of deposit can be avoided
5. Amendments to provide legal cover to the appointment of election monitors by the ECP
6. Amendment aimed at increasing the period of scrutiny of nomination papers filed by candidates
7. Amendment meant to make the violation of Code of Conduct a punishable offense

Out of the above categories of the proposed amendments, the last three (from 5 to 7) are probably the most substantive.

Apparently there seems to be a broad consensus in the society about most of the above proposed amendments except for the category 4 above which may be termed as working against the candidates of modest means. The important question, however, is whether the National Assembly will be able to pass these amendments before it completes its term on March 16, 2013 and what will be final shape of these amendments after these are passed by the National Assembly and the Senate.

Following is a relatively more detailed analysis of the above categories of the proposed amendments:

1. Amendments meant to further empower the ECP

Under this category of amendments, Section 7 of the Act is proposed to be amended to give powers to the ECP �to suspend or withdraw any officer performing any duy in connection with the election.� Under the law, if amended, the ECP �shall be competent to initiate and finalise disciplinary action and impose any penalty against any official for an act of misconduct�..�

This is one of the powers long demanded by the ECP. It is a welcome proposal and it is hoped that the Parliament will be able to pass the proposed amendment despite the fact that there is a considerable resentment among the Parliamentarians especially from the ruling-coalition against the ban imposed by the ECP recently against the new recruitments and transfer of development funds from one scheme to the other in the constituencies of ministers and the Prime Minister. This resentment may prompt them to take a position against more powers for the ECP but there is a strong societal support behind a strong ECP and it will be difficult to turn down this proposal from the ECP.

It is also proposed to amend Section 14 (Scrutiny), sub-section 5 of the act. Under this sub-section, the ECP could appoint Election Tribunals only after the approval of the President of Pakistan. It had been long argued that subjecting ECP decisions to the approval by the President undermines ECP�s independence. It is, therefore, a welcome proposal to change the provision and now, after the proposed amendment is passed, the ECP will nominate 2 to 3 Judges of the High Court as Tribunal in consultation with the concerned Chief Justice of the High Court.

The ECP has also proposed to insert a new section 86C Power to transfer any person in the service of Pakistan which, if passed by the Parliament, will empower the ECP to direct the appropriate authority to transfer any person in the service of Pakistan, if such transfer, in its opinion, is necessary for the conduct of free, fair and honest election.

This amendment will also enhance the ECP powers and hopefully will be passed by the Parliament.

2. Amendments aimed at increasing the amounts of fines for certain offences

Sections 80A, 82, 82A, 83(2), 83A(5), 84(2), 85, 86, 87(1)(2), 89, 90, 91 and 92 are proposed to be amended to increase the amount of fines for various offences to Rs. 50,000 and Rs. 100, 000. Presently these fines range from Rs. 5000 upwards.

It is expected that these increases will not be contested although there may be a case for increasing the amounts further to deter offenders. Due to inflation, the amounts of fines at present are ridiculously low and do not deter any offender.

3. Amendments meant to further empower the District Returning Officers (DROs) and Returning Officers (ROs)

Section 8 of the Act is proposed to be amended. The amended law will give greater role to the Returning Officers and District Returning Officers in the selection and verification of the location of Polling Stations although the draft list of the Polling Stations in a constituency will now be initiated by the ECP.

Section 14 of the Act is also proposed to be amended which will further strengthen the provision that the Returning Officer can ask any person or agency or authority to provide documents, record or information regarding the scrutiny of nomination papers of a candidate. This provision was already there but now this information is to be provided to the Returning Officers �within the time specified by the Returning Officer.�

Section 83A is also proposed to be amended and as per the amended section The District Returning Officer and the Returning Officer shall be responsible for the effective implantation of the provisions� relating to the fixing/pasting of posters, etc., of sizes larger than allowed by the law. Presently this authority is with the district nazim or district administration.

Section 96 of the Act is also proposed to be amended which will give the powers to the Returning Officers to launch appropriate proceedings in the court of Magistrate First Class against a person who contravened the provisions of Section 49 (Restrictions on Election Expenses) and failed to comply with Section 50 (Return of Election Expenses). Presently this power is with the ECP.

It is highly unlikely that anyone will oppose these proposed amendments.

4. Amendments proposing increase in the Amounts of Deposits by the candidates for the membership of National and Provincial Assemblies and increasing the threshold of votes at which the forfeiture of deposit can be avoided

Presently a candidate for the membership of the National Assembly and Provincial Assembly has to deposit a refundable amount of Rs. 4000 and Rs. 2000 respectively at the time of filing the nomination papers. Under the proposed amendment to Section 13 of the Act, this amount is proposed to be increased to Rs. 50, 000 and Rs. 25,000 respectively.

Although the amounts of deposit are still not very high but there is at least some merit in the argument that this increase will further discourage a person of modest means to contest election. It is likely that the proposed amount of deposit is reduced by the Parliament.

At present, the deposit is forfeited by the State if a candidate fails to secure 1/8th of the votes polled. It is proposed to increase this threshold to 1/4th of the total votes polled.

The proposed amendment is probably meant to discourage non-serious contenders but 1/8th was an appropriate threshold for this purpose and may stay unchanged.

5. Amendments meant to provide legal cover to the appointment of election monitors by the ECP

During some of the recent by-elections, the ECP started deploying teams of its own monitors equipped with cameras and video cameras to record evidence and monitor compliance of laws prescribing restrictions on election spending.

This practice has been successfully employed by the Indian Election Commission for the last many years. The ECP has now proposed to insert a new section 104B Monitoring of Election Campaign, etc to the Act.

This is a very welcome proposal and will go a long way in ensuring compliance of the Election Laws especially the ones relating to restrictions on Election Expenses and Sizes of Posters, etc., and the compliance of the Code of Conduct.

6. Amendment aimed at increasing the period of scrutiny of nomination papers filed by candidates

The ECP has proposed to amend Section 11 of the Act to increase the period of scrutiny of papers from the present seven (7) days to thirty (30) days.

This is a major amendment which will increase the entire election cycle from announcement of the election date to the holding of polls. Presently this cycle spans around 10% days which will now increase to about 70 days.

There are mixed views on the proposed amendment. Some hold that a longer scrutiny period will encourage witch-hunting of candidates and there will be a lot of mud-slinging. However, apparently there seems to be an overwhelming support for anything that supports greater scrutiny of candidates.

Recent understanding reached between the ruling coalition at the Federal level and Dr. Tahir-ul-Qadri in the form of Islamabad Declaration signed on January 17, 2013 also commits the Government to increase the period of scrutiny from 7 to 30 days.

It is, however, important to underscore that unless the contents of the nomination papers are made accessible to the voters, the longer period of scrutiny will not make much difference. It is therefore very important that the ECP ensures that all nomination papers are put on ECP website as soon as these papers are filed. This is a long standing demand by PILDAT but the ECP, for unknown reasons, has been reluctant to use its website for the purpose of making these important documents accessible to citizens.

The present procedure to obtain a photocopy of nomination papers from Returning Officer concerned is too complicated and time consuming and undermines the very spirit of making these nomination papers and accompanying declarations public.

7. Amendment meant to make the violation of Code of Conduct a punishable offense

The ECP has proposed to insert a new section 86B (Violation of the Code of Conduct) to the Act. According to this amendment �any person who violates any provision of the code of conduct shall be punishable with fine which may extend to one hundred thousand rupees.�

This is a substantive amendment which will make violation of Code of Conduct punishable. This indirectly will allow the ECP the legislative powers as Code of Conduct is framed by the ECP. Without any penalty for violation of Code of Conduct, the enforcement of the Code is not possible.

It is, however, a subject worth examining whether Code of Conduct should be passed by the Parliament or left to the ECP to frame.

In general, the proposed package of amendments is a very welcome step. Its contents can be further examined in more detail and improved when the bill comes up before the Parliament for debate and passage.