Elections in Pakistan: Better Legal Framework but Restrictions on Press Freedom and Competition

On 25 July, the Movement for Justice (Tehreek-e Insaf/PTI) led by former cricket star Imran Khan won the general elections in Pakistan. It prevailed against the governing Pakistani Muslim League (PML-N) and the Pakistan People’s Party (PPP). German MEP Michael Gahler headed the EU Election Observation Mission to Pakistan for the third time in a row. In the following, he describes his experiences and takes stock of the election process.

The promotion of democracy and the rule of law worldwide is one of the declared policies of the European Union. Democratic elections are a prerequisite for legitimate governance. Outside the OSCE’s geographical area of responsibility, the EU conducts long-term election observation missions on its own initiative.

The first prerequisite for this is an invitation from the respective government. In addition, the political and legal framework must be such that democratic elections can be held in principle. If this is not the case, we do not want to give a misguided impression simply by being here.

The political framework of the mission

If an invitation has been received and the decision to deploy has been made in principle, an exploratory mission which will examine in advance whether it is justifiable to send a core team to the capital and in this case 30 teams of two long-term observers to the country, particularly from a logistical and security point of view, will take place a few months ahead of the deployment.

The EU had deployed election observation missions (EOMs) to Pakistan already in 2002, 2008 and 2013, an invitation was again issued for the 2018 elections and preparations began. In addition to the chief election observer and his deputy, the core team consisted of the press spokeswoman, who maintains contacts with the media, the media analyst, who analyzes the reporting of the local media (7 TV channels, 3 radio programs, 4 newspapers) with the support of a large number of local staff, a country expert for domestic policy, a legal expert, an expert on electoral law, an expert on human rights in general and women’s and minority rights in particular, and two coordinators for the long-term observers.

Once this frame is in place, we can get started. As a rule, a preliminary statement covering the period up to election day will be presented at a press conference two days after the election. Two months later there is a final report covering all phases of the electoral process and containing recommendations. These include, for example, ways of improving the legal framework, such as strengthening the independence and working capacity of the Electoral Commission or improving voter registration. They also point to existing international obligations as well as opportunities to make certain procedures more transparent or to “parliamentarize” them, to improve dialogue with civil society or, especially in the case of Pakistan, to expand women’s participation.

Implementation of recommendations from past missions

The 2002 recommendations were practically ignored at the time. This fundamental problem existed in many election observations in previous years: after the final report was issued, it was filed in the country itself, but also in Brussels, and at best it was brought out again next time with the sad observation that actually nothing or hardly anything was heeded, let alone implemented.

I was aware of this situation when I personally promised the then Commissioner for External Relations Bettina Ferrero-Waldner at the end of 2007 that I would take over this difficult mission in Pakistan shortly before the foreseeable end of the reign of General President Musharraf. It was unclear whether “the King’s Party”, the PML-Q, could win the elections, there were widespread suspicions of allegedly large-scale vote rigging. Then on December 27, 2007, Benazir Bhutto was shot – two hours before I was supposed to meet her. There was no election fraud, but there was a change of government and I recommended to the Pakistan People’s Party (PPP), the Bhutto party, to contribute to making such suspicions meaningless in the future.

I also insisted to the EU delegation in Islamabad and our embassies of the member states that they regard our recommendations as their “homework” and launch follow-up programmes for cooperation with the election commission, government and parliament.

Some of the recommendations at that time had already been implemented by 2013: The international agreements on civil and political rights and on economic, social and cultural rights have been ratified. The many reservations expressed, which largely undermined the substance, were systematically analyzed in the context of programs in which Democracy Reporting International from Berlin participated, among others, in cooperation with the relevant ministries and were withdrawn, except for the requirement that the President of Pakistan must be a Muslim.

As a result of our recommendations, the appointment of the members of the Electoral Commission was transferred from the sphere of the president to parliament, where since then the appointment has been made largely by consensus in a non-partisan body.

The requirement for an academic degree in order to run for parliament has been abolished. For poor families, the fee for the purchase of a computerized national identity card (CNIC), which in turn is a prerequisite for registration in the electoral register, has been abolished as recommended.

Many of the recommendations of the EU EOM after the 2013 elections have now been incorporated into a harmonized electoral law adopted with broad consensus in 2017. In particular, the legal strengthening and financial independence of the electoral commission ECP, the improvement of the electoral register to 106 million registrations with an increased proportion of registered women, was achieved. A census allowed many constituencies to adapt to the changing constituency sizes, even if this has not been done satisfactorily across the board.

Mission 2018: Unprecedented delays in operations

Following the invitation by the Pakistani Electoral Commission to deploy an EU Election Observation Mission, supported by the incumbent Pakistani Government, the exploratory mission took place in March. The European External Action Service (EEAS) tried to negotiate a Memorandum of Understanding (MoU) with the Pakistani side, which was supposed to settle the modalities of our mission. Since we had not succeeded in doing so in 2002, 2008 and 2013, I advised early on to refrain from doing so and to limit ourselves, as in the past, to exchanging verbal notes that were to rewrite the content of what had last been possible in 2013. This is what finally happened, but only with the caretaker government, which took over the government functions after the formal end of the parliamentary session on June 1.

The following processes were delayed to an extent that we had never experienced before. The core team was originally scheduled to arrive in the first week of June, the team responsible for setting up the technical infrastructure a week earlier. Together with the core team, our liaison officers should have entered to check the safety of the planned sites for our long-term observers.

Contact with the various Pakistani security agencies would also have been urgently needed at this time with the aim of having the long-term observers on the ground at least one month before the election on 25 July. It is pointless to blame one body or another. The fact is that our methodology, which requires a longer presence on the ground before and after the elections, could not be fully implemented. Three security experts were refused visas because they are not EU citizens. The core team arrived on June 24 and will be able to stay until September 9. The 60 long-term observers received the visas in such short supply and for a limited period until 8 August that they arrived only between 3 and 6 July, received their accreditations for the sites on 13 July and could only be on site starting from 17 July, with the last people arriving on Sunday before the elections on Wednesday. They returned to Islamabad on August 5th and left the country on August 7th – at least a week earlier than we had envisioned.

The media landscape, the legal situation, the domestic political atmosphere and the preparations on the part of the electoral commission were analyzed from 24 July onwards. We were too late on the ground to observe the list of candidates in the constituencies and also to monitor the procedures with a view to possible initial rejections or complaints against them.

Political tensions within the country

Every election observation mission takes place in a specific domestic political environment. For the 2018 election, it was positive that the parties represented in parliament had managed to pass an electoral law in time for the election in the second half of 2017 that merged seven pre-existing and partially inconsistent laws into one, which significantly improved the functionality of the electoral commission.

In the same period, however, a debate about the alleged change of the oath of office, which did not undoubtedly reflect the prophet’s finality, led to the resignation of the Minister of Justice. In this context, the Ahmadi community, which is not recognized as Muslims by official Muslim representatives, has again been banned from the common electoral list of all citizens with an amendment to the electoral law.

I had already described this practice in 2008, 2013 and in this year’s preliminary statement as incompatible with Pakistan’s laws and its international obligations: for us as observers it is not decisive who is a Muslim and who is not, but who is a citizen and who is not. The Ahmadis are undoubtedly Pakistani citizens. And even if the official view were to be that they are not Muslims, the logical consequence would be to treat them as other “non-Muslim” citizens in Pakistan, i.e. to list them as Christians, Hindus, Sikhs and others on the common electoral roll and to provide them with reserved seats. The practice of segregation, which was reintroduced by an amendment to the electoral law of 23 November 2017, is regrettable and worthy of criticism.

Overall, the political climate in the run-up to the elections was dominated by the resignation of Prime Minister Nawaz Sharif and the debate on the influence of the “military establishment” on these events (for further information on Pakistan’s political and economic development and the role of the military, see also the BTI country report on Pakistan). At the time of preparations for our observation mission, the political climate was dominated in particular by the debates and fears of the ruling party PML-N and the largest opposition party Pakistan People’s Party (PPP) that the establishment would support candidate Imran Khan (PTI) by putting pressure on candidates from PML-N and PPP not to run at all, to change sides or at least to run as independents.

In addition, various print and audiovisual media, the best-known of which are GEO-TV and the newspaper Dawn, founded by state founder Ali Jinnah, complained about massive obstructions to their publication. Many individual journalists also complained of “calls” that did not come from the media supervisory authority PEMRA. In addition, the anti-corruption authority was accused of primarily taking action against functionaries and elected officials of the PML-N party.

How these circumstances would affect voting behavior, whether it would be relevant outside the “Islamabad bubble” in the constituencies, or whether there was a mood of change anyway, these were interesting considerations impacting our observation.

Political culture and influence on candidates and media

Pakistan’s political system is traditionally characterized by quasi-feudal structures in which large families such as the Bhuttos or Sharifs have built up and expanded their influence over decades. At the same time, not only in many rural areas are constituency structures so shaped that constituencies are inherited within families, from father to son or brother and nephew, exceptionally also sometimes to a female family member. Opportune party changes, including keeping the candidacy in the constituency, are not uncommon. In these elections, the proportion of “apostates” appeared particularly high, who mostly “reoriented” themselves from PML-N, occasionally from PPP to Imran Khan’s PTI, or at least as “independents”. 54% of the PML-N and 12% of the PPP candidates elected in 2013 left these parties, running as independents or not at all. Discussions gave the clear impression that the “establishment” had an influence on various levels, even if this was officially vehemently denied.

The media, publishers, broadcasters and individual journalists also found themselves under “pressure of expectation” not to report positively or not at all on former Prime Minister Nawaz Sharif or not to criticize the Supreme Court. Widespread self-censorship was the result. For example, the circulation of the daily Dawn was stopped in large parts of the country in May 2018 following the publication of an interview with Nawaz Sharif. In March 2018, GEO-TV had already been banned from cable and satellite networks in most parts of the country. Several major publishers were told not to report live about Nawaz Sharif’s return to Pakistan on July 13, 2018. To be on the safe side, Sharif’s return to Lahore was accompanied by the shutdown of the entire mobile network for several hours without any discernible legal basis, so that supporters could not broadcast the event live on social media.

A very vivid example of self-censorship arose from a conversation with a journalist from a station we know. He stated on record: “My boss cannot afford to argue against the establishment. So we reported positively about Imran Khan almost the whole time and broadcast his performances live. And when he got a critical question from the audience, we didn’t wait for the answer, we faded out and sent a can with a PML-N scandal.”

The Dawn newspaper did not accept such false compromises. Their editors argued against the pressure and tried to defend the achieved standard. The newspaper referred to its tradition of appearing, in the worst case, with a blank page rather than violating its convictions.

Preliminary assessment

The legal framework for the conduct of elections according to international standards is in place. This is ensured by the constitution, electoral law and implementation rules of 2017, the rules of conduct for all parties involved, as well as notifications to the electoral commission and relevant parts of the criminal law and criminal procedure code.

There are shortcomings in the area of freedom of expression as regards the necessity and proportionality of restrictions, as well as in the conditions for candidacy, which impose vague moral and ethical criteria.

The election law of 2017 has given the electoral commission itself better opportunities to implement the law. The law contains transparency provisions for various stages of the procedure, as well as measures to improve women’s participation. Overall, the electoral list has grown by 23% since 2013 to 105,955,407 voters, a slight percentage increase in women, who nevertheless represent only 44% of the registered electorate. The campaigns on female voter registration carried out jointly by the Election Commission, the National Data Processing Authority (NADRA), UNDP and civil society organisations in 79 districts led to a 66% increase in registered female voters in the federally administered tribal areas (FATA).

In our view, it is commendable that the new legal framework has taken up 37 of our 50 recommendations of 2013 to varying degrees. The EU Election Observation Mission’s preliminary statement notes, however, that these positive changes were overshadowed by restrictions on press freedom and unequal conditions of competition during the election campaign.

A more detailed analysis of the entire electoral process and reform recommendations from EU election observers will be included in the final report to be published shortly.