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  • Sunday, 26 June 2022
IMPOSSIBILITY OF USE OF EVM AND E-VOTING BY PAKISTANI FOREIGN EXPATRIATES IN UPCOMING ELECTIONS

IMPOSSIBILITY OF USE OF EVM AND E-VOTING BY PAKISTANI FOREIGN EXPATRIATES IN UPCOMING ELECTIONS

 

IMPOSSIBILITY OF USE OF EVM AND E-VOTING BY PAKISTANI FOREIGN EXPATRIATES IN UPCOMING ELECTIONS

 

Aga Faquir Mohammad

 

Advocate Supreme Court of Pakistan

 

 

 

 

 

For the purpose of election of both houses of the Majlis-e-Shoora (Parliament) and the provincial assemblies, a permanent Election Commission (ECP) constituted[1] under the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) as a statutory body consisting of a Chief Commissioner as the Chairman of the Commission and four members one from each Province who has been a judge of a High Court or a senior civil servant or a technocrat. [2]The Chief Commissioner of ECP is appointed by the President of Pakistan, the head of the State[3]. The duties of the ECP are to organize, conduct and ensure elections   of the National Assembly, Provincial Assemblies, the Senate and local bodies honestly, justly and fairly in accordance with law[4], to guard against corrupt practices, political interference in elections, to appoint Election Tribunals, to perform other functions as may be specified by the Act of parliament; to make election rules by the approval of the President of Pakistan; to prepare electoral rolls & rules as to residence of the candidate in the constituency and all other matters necessary for the constitution of both the houses and the provincial assemblies. The executive authorities of the Federation and the provinces are to assist ECP in discharge of duties[5]. The Prime Minister and the Federal Ministers being the executive authorities of the State have to assist the Election Commission in the discharge of its functions in accordance with law. The Prime Minister and the Ministers cannot interfere in the performance of the ECP.   

 

 

 

ECP constituted a committee in the year 2010 on the “Use of Electronic Voting Machines (EVMs) in Pakistan” for analyzing financial, legal and political involvement in the upcoming elections. The Committee recommended legislative changes in the existing laws of Pakistan and suggested use of Electronic Voting Machine (EVM) on small scale as pilot project during forthcoming local government elections to test the use of e-voting, counting machines, supporting management and results tabulation systems.

 

 

 

On the recommendation of ECP committee report of 2010, the National Assembly made changes in the then existing election laws by enacting Election Act, 2017 amending, consolidating and unifying all laws relating to the conduct of elections. In the year 2021, the President of Pakistan in violation of the Constitution[6] promulgated Elections (Second Amendment) Ordinance, 2021 authorizing ECP for procurement of EVMs and to enable e-voting services for overseas Pakistanis / foreign expatriates in the upcoming general elections of 2023. As per the amendments in section 94 and section 103[7], the overseas Pakistanis are to vote online through e-voting services during the upcoming general elections while staying in the country of residence with the technical assistance of National Database and Registration Authority (NADRA)[8]; empowering ECP for procuring EVMs for casting of votes in the upcoming general elections. The said Amendment Ordinance, 2021 was presented before the National Assembly in the form of a Bill and was passed without providing proper opportunity of debating on the conduct of free and fair elections by the members of National Assembly. The Bill is pending before the Senate Standing Committee on Parliamentary Affairs.

 

 

 

Mr. Fawad Chaudhry, Minister for Information and Broadcasting and Mr. Babar Awan the Adviser to the Prime Minister on Parliamentary Affairs presented the prototype of EVM at the Parliament House, Islamabad on 19th May’ 2021[9]. The electronic voting machine so presented was claimed to be locally made by Ministry for Science and Technology in collaboration with COMSATS University Islamabad and the National Institute of Electronics (NIE)[10]. It is pertinent to note that the above stated institutions are for teaching, learning, research and discovery only. These institutions not for manufacturing any electronic devices including EVM under their respective Institutional Charters. A senior official of the ECP claimed that the machine presented to the Prime Minister was nine years old and “unreliable” [11]. The Federal Minister of Science and Technology, Shibli Faraz[12] in August’ 2021 admitted that “the EVM as presented by Mr. Fawad Chaudhry, the then Minister of Science & Technology on 31st March’ 2021 was developed in 2014 and it did not meet the required specifications of the ECP”. Appropriate disciplinary action should have been taken against the Federal Minister, Fawad Chaudhry for misleading the Prime Minister on the matter of EVM.

 

 

 

Mr. Shibli Faraz, the Federal Minister for Science & Technology briefed the Prime Minister Imran Khan on 5th August’ 2021 of a new Pakistan made EVM claiming that the new machine is 98% accurate in line with the ECP specifications. The Minister further claimed that EVMs are being developed using indigenous technologies at half the cost of imported devices by National University for Science and Technology, Comsats and National Institute of Engineering (NIE) [13].

 

 

 

For holding of upcoming general elections of overseas Pakistani, the ECP has to consider financial and legal aspects as well as inter-government relations between Pakistan and the countries of residence of overseas Pakistanis. The population of total number of overseas Pakistani was estimated to be around 8.8 million[14] settled in 118 countries including those who have migrated as well as those who are born of Pakistani descent. NADRA has to revise the ‘Overseas Voters List’ after deleting those overseas voters who are deceased; who have surrendered Pakistan nationality; non-Pakistani immigrants registered fraudulently in NADRA database. [15]Major challenges to be considered for conducting e-voting or external voting for overseas Pakistanis by the Federal Government are that:

 

 

 

·        E-voting by non-resident Pakistan implies great financial cost; greater effort per voter; guarantee of maintaining secret voting; prevention of fraud; electoral registration; election campaigning; voter information & education; and the overall cost to the host country of facilitating external voting program. Electoral management body may not be able to fulfil the functions autonomously in foreign host countries. The electoral management for e-voting by non-resident Pakistani will cost heavily in foreign exchange. Organization of Overseas Voter’s Registration may adversely affect the Pakistan economy. Collaboration has to be made with institutions of the host countries and concerned authorities of Pakistan.

 

 

 

·        Electoral disputes may involve organizational problems.  The ECP will have to provide facilities catering to the issue of alleged irregularities in voting and to resolve rigging complaint by overseas Pakistanis. Necessary amendments in the Election Act will have to be enacted.

 

 

 

In my earlier published paper on the “Possibility of Electronic Voting in upcoming General Elections of Pakistan” allocation of proper fund necessary for preliminary installation of EVMs was discussed and the paper was published on online forums including Academia.edu.com and the same was debated among the scholar panel. The Federal Government allocated USD 500 million in the Annual Budget 2021-22 for procurement and other expenses for holding upcoming general elections, electronically.

 

Mr. Babar Awan, the Adviser to the Prime Minister on Parliamentary Affairs and Mr. Shehbaz Gill, Special Assistant to the Prime Minister on Political Communication announced in a press conference held on 2nd September’ 2021 in Islamabad that the general elections-2023 would be held in a transparent and fair manner and vowed to get the legislation on the use of EVMs and e-voting for the overseas Pakistanis passed by the end of this year without opposition’s support         . Mr. Advisor further informed the press that the NADRA had sought Rs. 2.2 billion for providing technical support for e-voting[16]. The Advisor on Parliamentary Affairs referred to successful electoral procedure in India conducted through electronic voting machines and claimed that Pakistan can have same successful results through EVMs. Such statements were made by the Advisor being ill-informed.

 

India started working on electronic voting machine in 1989 and the first EVM was developed and tested by the state-owned Electronics Corporation of India and Bharat Electronics in the 1990s. The Election Commission of India (ECI) in consultations with the Indian courts, experts and volunteer feedback from different political parties, developed a database of thumb impressions and electronic voting machines. The EVM were first used in 1982 in the by-election on experimental basis. India did not use electronic voting machines in the general elections as late as 2003 on phase-basis and non-resident Indians are still not able to cast their votes while staying in their country of residence. India has still not made EVMs available for overseas Indians to cast their votes citing “compromise of secrecy of voting” and “lack of logistical wherewithal to handle attestation for a large number of overseas electors by diplomatic missions” as major reasons behind the decision.

 

 

 

The ECP submitted objections[17] to the Senate Standing Committee on Parliamentary Affairs on 8th September’ 2021 before voting on two controversial bills seeking to amend the elections act. The objections raised by the ECP are as under:

 

·        The time is too short for a large-scale procurement and deployment of EVMs and imparting training to a massive number of operators.

 

·        Monitoring of electronic voting polls on one day as required under the law would be nearly impossible.

 

·        Lack of ballot secrecy.

 

·        Lack of capacity at all levels and lack of ensuring security and chain of custody for EVMs at rest and during transportation.

 

·        There would be no evidence available in case of election dispute.

 

·        Data integration and configuration issues may crop up due to court orders at the eleventh hour regarding a change in ballot paper.

 

·        Absence of dust and humid free controlled temperature environment warehouse for storage of EVM.

 

·        Huge learning curve was required for technical operators.

 

·        No consensus among the stakeholders on EVM which was also not financially feasible.

 

·        EVM cannot prevent low voters’ turnout and low women’s turnout.

 

·        EVM cannot counter misuse of state authority, election fraud, electronic ballot stuffing, vote buying, law and order disruption, dishonest polling staff, widespread political and electoral violence and abuse of state resources could not be prevented by EVMs.

 

·        Lack of consensus among the stakeholders will cause problems to EVMs if introduced in undue haste.

 

·        In case of introduction of the technology in haste, the conduct of free, fair, credible and transparent elections as per the Constitution was not possible.

 

·        EVM presented by the Federal Ministry is susceptible to manipulation through radio device and fall short to address the issues of counting of votes and transmission of results.

 

·        Amendments in Election Act, 2017 lacked critical questions pertaining to voting by overseas Pakistanis, including responsibility of their registration as voters and allocation to the constituency and mechanism for the ECP to enforce the legal requirements as provided for under section 30 and 37 of the Election Act, 2017.

 

·        Approximately 0.8 million EVMs would have to be procured for the purpose of electronic voting in general elections 2023, this would require a constitutional amendment.

 

The ECP in its objection remarked that in case of hasty introduction of EVM, the conduct of free, fair, credible and transparent elections in Pakistan as per the Constitution is not possible. The Federal Minister for Science and Technology Shibli Faraz announced at a press conference held on 9th September’ 2021 that legislative process for machine introduction and for overseas Pakistanis’ right to vote would be completed this month and everybody would be bound to obey the law once it’s enacted” [18]. The Federal Minister is unaware that the Minister has to obey the Constitution of Pakistan. The invitation from the Minister to all political parties to get error-free machines, developed by his ministry to examine by technical experts is an illegal and unconstitutional act. It is not the duty of any Minister or any leader of the political party to assess the EVMs. Such act is unconstitutional. Mr. Minister of Science & Technology is unaware that any law passed by the legislatures can be struck off by Supreme Court of Pakistan. If such statement by a minister was passed in another democratic country, that minister would have been made to resign. Such irresponsible statements led down image of Pakistan in the world as a democratic country. The declaration of the Federal Minister may amount to contempt of court under the Constitution. The Advisor to the Prime Minister is a constitutional post. The Advisor is not equivalent to the post of Federal Minister[19]. An Advisor to the Prime Minister is not a member of the Cabinet nor can they participate in the cabinet proceedings. He cannot be a member or even chair the Committee of the Cabinet. An Advisor can address the parliament but cannot participate in the voting process.

 

Holding the upcoming general election in haphazard way on the advice of the Advisors who do not have any specialized knowledge of electrical & digital technology and interfering in the constitutional duties of the ECP will cause constitutional crisis and upcoming general elections-2023 will be marred with controversies. This will eventually lead to proclamation of emergency under Article 235 of the Constitution.

 



[1]Article 218 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). 

[2]Article 213 of the Constitution. 

[3]Article 41 of the Constitution. 

[4]Clause (2A) and (2B) of Article 213 of the Constitution. 

[5]Article 220 of the Constitution. 

[6]Article 89 of the Constitution. 

[7]Section 94 sub-section (1) of Election Act, 2017. 

[8]Section 103 of Election Act, 2017. 

[10]Article 89 of the Constitution. 

[19]Writ Petition No.01 of 2020-Farrukh Nawaz Bhatti v/s Prime Minister of Pakistan, Prime Minister’s Office, Islamabad and others and Writ Petition No.1870 of 2020-Rana Iradat Shairf Khan vs Federation of Pakistan, through Secretary to Government of Pakistan in the Cabinet Division, Islamabad and others.

 

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