Consultation on Code of Conduct preparation for General Elections-2018

Prepared By: KANWAR MUHAMMAD DILSHAD

Chairman, National Democratic Foundation
(Former Federal Secretary, Election Commission of Pakistan) October 2016
We have reviewed the document and found a major shortcoming.
It is pertinent to mention that clause 20 (e) of proposed draft code of conduct needs to be revisited in the light of clause 48 and 49 of chapter VI of Election Expenses, under representation of People Act, 1976. 
We hope this will be valuable and helpful for Political Parties to enrich and strengthen the text of the proposed draft Code of Conduct for General Elections 2018.
The Code of Conduct for the General Elections is not an ordinary matter and cannot be amended every now and then.

Substitution of Article 18

18. Code of Conduct

  • (1). In order to maintain fairness, impartiality and transparency in any election the Commission shall make Codes of Conduct, as it deems proper, to be abided by political parties, candidates, Government Departments and officers and print and electronic media in public and private sector. The Commission shall, while making such Codes of Conduct make consultation to the concerned stakeholders.
  • (2). The Commission may make such codes of conduct particularly on the matters restraining federal or a provincial government from declaring any new policy, plan and programme and using government owned media for election canvassing in such a manner as to effect the fairness and impartiality of the election. The codes of conduct prescribed by the Commission shall be published in the official Gazette and shall be the duty of all concerned to abide by such code of conduct.
  • (3). The Commission shall make appropriate mechanism, including but not limited to formation of Electoral Enquiry Committee, for monitoring and ensuring that the code of conduct is followed by all concerned.
  • (4). If as a result of any enquiry or monitoring report, it appears that anyone has not abided by or has violated the code of conduct, the Commission shall order the concerned political party, candidate, person, organization, official or body to stop or invalidate such act immediately.
  • (5). The Commission may punish any political party, candidate, person, organization, official or body failing to stop or invalidate the Act in Pursuance of the Order issued by the Commission with a fine not exceeding one hundred thousand rupees.
  • (6). If the Commission is satisfied that election in a constituency cannot be held in a free, fair and impartial manner by the reason that a candidate has frequently violated the code of conduct issued by the Commission, the Commission may, assigning the clear reason and ground therefore cancel the candidature of such candidate. Prior to cancelling the candidature, the concerned candidate shall be provided with reasonable opportunity for defence.

(Note-Existing Article 18 shall be substituted) Rationale

Election Commission prescribes code of conduct for political parties and candidates at the eve of each election, which is published in the official Gazette. The political parties and candidates are supposed to follow this code but they frequently violate it as law does not provide some workable mechanism to monitor violation and to punish the violators. The proposed amendment together with suggested provision of “Election Monitors” and “Electoral Enquiry Committee” will definitely be beneficial in further strengthening of Election Commission and ensuring more effective implementation of code of conduct. The proposed amendment had been taken from the legal framework available for conduction elections in Nepal.

Chapter VI (Election Expenses) of the Representation of the People Act, 1976

49. Restriction on election expenses- (1) No person other than the candidate or his election agentshall incur any election expenses of such candidate:

Provided that were any person incurs any election expenses on behalf of such candidate, whether for stationery, postage, telegrams, advertisement, transport or for any other item whatsoever, such expenses shall be deemed to be the election expenses incurred by the candidate himself.

(2) As it is.

(2A) At the time of submitting the nomination paper, every contesting candidate shall submit to the Returning Officer, a statement, in the prescribed form, of the probable sources of fund to meet his election expenses showing.

  • (a) The sum to be provided by him from his own income and the sources of such income;
  • (b) The sum to be borrowed, or received as voluntary contribution, from his relations and the sources of their income;
  • (c) The sum to be borrowed, or received as voluntary contribution, from any other person;
  • (d) The sum to be received as voluntary contribution, from any political party, organization or association;
  • (e) The sum to be received from any other source.

[Provided that the provisions of sub-clauses (a) to (e) shall not apply to a case where the amount of such sum is not more than rupees five thousand to be received as voluntary contribution or grant].

Explanation- In this clause, “relations” means spouse, parents, sons, daughters, brothers and sisters.

  • (2B) (1) The statement under clause (1) shall be accompanied by a statement in the prescribed from, of the contesting candidate’s assets and liabilities and his annual income and expenditure and, if he is an income-tax assessee, a copy of the income-tax return last submitted by him.
  • (2) A copy of the statement submitted under clause (1) together with a copy of the statement and the return mentioned in clause (2), shall be sent by the contesting candidate to the Commission by registered post at the time of their submission to the Returning Officer.
  • (3) If the contesting candidate receives any sum from any source other than any of the sources mentioned in his statement submitted under clause (1), he shall, submit a supplementary statement to the Returning Officer showing the sum so received and the source from which it is received, and a copy of such statement shall be sent by him to the Commission by registered post at the time of its submission to the Returning Officer.

49 A. Account of Election Expenses, Every election agent or, where there is no such agent, the contesting candidate shall

Section 50 – Return of Election expenses

(1) Every election agent of a contesting candidate shall, within thirty days after the publication of the name of the returning candidate in the official gazette submit to the Returning Officer a return of election expenses in the prescribed form containing-

  • (a) a statement of all payment made by him each day together with all the bill and receipts;
  • (b) a statement certified by the scheduled bank refereed to in section 49A showing the amount deposited in and withdrawn from the account under the clause;
  • (c) a statement of the amount of personal expenditure, if any, incurred by the contesting candidate;
  • (d) a statement of all disputed claims of which the election agent is aware;
  • (e) a statement of all sums received from any sources, together with evidence of such receipts, for the purpose of election expenses, specifying the name of every such source.

(2) The return submitted under sub-section (1) shall be accompanied by an affidavit sworn severally by the contesting candidate and his election agent or, where a contesting candidate is his own election agent, only by such candidate.

(Existing sub-section (3) of section 49 shall be omitted)

Rationale

It is observed that the maximum limit for making expenditure by the candidates on their election campaign is generally not respected. The Returns of Election Expenses filed by the candidates do not contain enough information to ascertain if the legal provisions were strictly followed or not? Thus the whole exercise becomes meaningless. The proposed amendments are practiced in Bangladesh and will help imposing more restrictions on making expenditure beyond prescribed legal limits. The candidates will think twice before spending money in contravention of relevant election laws.