By Hassan Yousaf Shah
“It’s not how you play the game. It’s how the game plays you.”
The outcome of the delimitation, due in the next two weeks, is going to eat right into the heart of every constituency in Election 2018 and will eventually decide the role or face of the future prime minister. If this is not enough, this delimitation result (in almost most cases) will stand till the next census which, according to the law, is not due till the next 10 years. At one level the delimitation process has such far-reaching impact, and on the other hand it is going to be announced in such a “time-squeezed” environment, that the elections could be held on time, leaving hardly any breather for correction, readjustments and barely allowing the next process after delimitation, to set in.
The elections which are expected to be one of the most sought-after episodes for 2018 amidst the newly passed Election Act of 2017. The upcoming election is going to be a pitched battle for not only likes of the PTI and the PML-N but also highly politicised new entrants like the PAT, Barelvi religious organisations and perhaps even Fata. Winning over the constituents is going to be the key to any successful candidate and eventually in determining the future faces of the provincial and national chief executives. The important element is winning the constituents is mostly dependent upon how the Election Commission sets forth the new delimitation process and draws the new constituency boundaries.
The newly proposed Election Act of 2017 has been drafted by involving the opposition this time around. The purpose perhaps is conveniently to loop in the opposition in any dispute or at the hint of a disagreement. There were nearly 7-9 older election laws which have been done away with to bring one consolidated Election Act of 2017 and has been marred with controversy, and the legal lacunae of which delimitation is going to be one of the key ones.
The delimitation process as per the statute should be conducted within four months before the elections, as per Article 51 (5) of the Constitution, which is still due but this issue has been addressed by an amendment to the Constitution. This issue too should have been raised in the Supreme Court because the official census (one yet to be published after minor correction but according to sources) would have had a difference in favour of Khyber-Pakhtunkhwa and Balochistan. However, due to the pressing need to hold elections on time, the constitutional amendment in November 2017 for the number of National Assembly seats is going to be based upon the unofficial census result something which now favours Punjab. As a student of the Constitution it is my reading that both timely elections and not depriving provinces of their due share in the National Assembly are embedded in the Constitution and therefore should not have been traded one for the other. But it has been done.
The other important issue linked to the big debate is, how is the ECP conducting the delimitation process? Earlier repealed election laws suggested recommendation from the district election commission office and then the provincial authorities would be shared with the federal government. Now this has been done away with and with immense powers allocated to the Federal Election Commission which is going to delimit the constituencies. This implied that the time frame given there will hardly leave space for changes, appeals or even recommendation from authority or subject matter experts who understand “ground reality”. As the process involves high stakes, the country’s future, fundamental rights and substantive laws, has too much power been placed in the hands of one institution without a little monitoring and far less accountability? Should not this have been made more open, transparent, “interactive” as also worded so pompously in Election Act of 2017? This law alone should have been challenged but the pressure elsewhere (Qualification and disqualification criteria sub judice at the Supreme Court) has distracted many jurists and this has gone unnoticed. Will this factor haunt the results of the elections to come and played over and over again at news channels is something I leave for time to tell.
The third important point is that based on the census and the ECP notification, Punjab which is going to lose 7 National Assembly seats will have on average an electoral strength of nearly 720,000-880,000 population per National Assembly seat. Interestingly, no reason has been given for the census. If this process is carried out (which will be most time efficient) districts such as Hafizabad, Jhang, Lahore, Gujranwala will have some constituents which will have more than a 900,000-strong population. Are there explanations attached to the result as to how right in the heart of Punjab the populations suddenly dropped but rose elsewhere?
The proposed methodology is going to divide the constituency based upon population and administrative criteria. It will be decided (as it is clearly laid down in law) not to disturb the Putwaar boundary (term often referred to as ‘Qannoongoi”) and not to disturb the district boundaries as more of an administrative decision. The process will resume from the north-most seats, ie, post Pindi Division and then it will travel downward near Rajanpur, Rahim Yar Khan districts, which includes tribes, bridges and even culturally dividing three rivers such as the Indus, the Chenab and the Jhelum.
The provincial demarcation will be more challenged than the National Assembly. Most complaints — and controversy — will probably surround provincial delimitations. Any successful politician at a National Assembly constituency depends upon two or three provincial assembly seats beneath; changing the structure below will not only change the outcome at the National Assembly but it will also strategically influence the next chief executive of the province. In time it will reveal itself, if the provincial assembly delimitation will also be more difficult, important, and controversial than the National Assembly ones.
The fifth important question is — can the appeals against the delimitation be “rectified” within time for the elections? If not, can these be fixed for the next elections? Can the superior courts afford to adjudicate all the “wrongs” and fix them along with other election petitions which will flow post elections such as against the election irregularities, election results, etc. The other interesting aspect to look at is how will the Election Commission present its working and methodology when such issues are questioned in the superior courts? Will the methodology be challenged?
The quote at the beginning of the article does make sense after all.
(The writer is a lawyer, Chevening Scholar, with experience in policy framework, litigation, judicial interpretation and legal matters. You can reach him at firstname.lastname@example.org or you can follow him on Twitter hyshah1)