Parliamentary Committees And The New Election Commission Of Pakistan

Pakistan-Parliament

Parliamentary Committees And The New Election Commission Of Pakistan

“They sit there in committees day after day
And they each put in a color and it comes out grey
And we all have heard the saying, which is true as well as witty
That a camel is a horse that was designed by a committee.”

– Allan Sherman

Parliamentary committees all around the world play a very significant role in legislatures. In addition to lawmaking and oversight of executive actions, committees of parliament are also constituted for either the confirmation of persons designated or nominated for important positions or for making recommendations for such appointments.

Pakistan, too, has the privilege of having committees in each house of Parliament as well as in the provincial assemblies. However it seems that parliamentarians who are part of parliamentary committees are not fully aware of what is required of them.

Recently a bipartisan parliamentary committee recommended names for the appointment of members of the Election Commission of Pakistan (ECP). This committee had to discharge an obligation under the Constitution of Pakistan. The Leader of the House and the Leader of the Opposition had failed to agree on common names. Had that not been the case, the purpose of the committee would perhaps have been irrelevant and would have had no responsibility or duty to deliberate on the recommendations.

Since the Leaders of the House and Opposition failed to reach a consensus, each of the two recommended names of their own accord to the bipartisan parliamentary committee (comprising of MNAs and Senators) in order to deliberate and make recommendations for appointment of the ECP members.

So what did the parliamentary committee actually do? They opened sealed envelopes, ticked off one name for each province and disbanded the committee. Their work was over in a few hours. Were they not required to consider each name and his or her credentials? Did they invite the nominees for assessing their capabilities to hold such important assignments? Obviously not.

In democracies around the world, nominees are interviewed and literally grilled before any appointment is confirmed or recommendation made. Moreover, such proceedings are public hearings in the presence of the media and not closed-door, clandestine meetings.

Leaving aside the outside world, let’s take examples from our own practice. The recommendations for the appointment of the Chairperson of the National Commission on the Status of Women (NCSW) also had to go through the statutory obligations of endorsement/ recommendation by a bipartisan parliamentary committee in 2012. The committee that was constituted, interviewed and questioned the nominees for almost a full day and then made a recommendation.

Similarly in 2013, with the present government, members appointed to the National Commission on Human Rights had appeared before the bipartisan parliamentary committee which had then finalized names of the individuals for the said Commission.

Now what has the latest parliamentary committee done? Millions of dollars obtained through aid or loans are spent on the training of parliamentarians – has all this money gone down the drain? Are we not paying a price for democracy? Could anybody like the Speaker of the National Assembly or the Chairman of the Senate ask for records of the proceedings of this committee? Do citizens not have a right to know as to what exactly happened? Is that not a right under Article 19A of our Constitution?

The Pakistan Institute of Legislative Development and Transparency (PILDAT) has also expressed deep concern over the delayed and flawed appointment of the members of the Election Commission of Pakistan in the following words:

“The procedure, once instituted after inordinate delay, has also seen apparent flaws. Article 213 (2A) once read with Article 218 of the Constitution describes the procedure for the appointment of the members of the Election Commission of Pakistan and clearly mentions that the Parliamentary Committee will be responsible for hearing and confirmation of one name for each position. This constitutional provision stipulates hearing as a necessary prerequisite of confirmation. The Parliamentary Committee has apparently not fulfilled its complete responsibility by confirming four names against four vacancies without any process of hearing. This, in PILDAT’s opinion, has rendered the process of selection of EC members vulnerable to legal challenges.

In 2011 when the four members of the ECP were appointed, the objection to lack of hearing was raised and Syed Khurshid Shah, who was then the chair of the Parliamentary Committee, had acknowledged that it was a serious lapse on the part of the committee to not have held hearing.

The same lapse has occurred once again. It is a rather sad commentary on the seriousness of the honourable parliamentarians who have been entrusted by the nation to take such important decisions but they not only delay the process but also fail to complete the formalities of the process.”

(More details here: http://www.pildat.org/eventsdel.asp?detid=896)

If such is the role of parliamentary committees, I shudder to look at the appointments confirmed by them for judges to the superior judiciary.

I would also like to bring to notice another aspect of the committee constituted for appointment of the ECP members. After the conclusion of proceedings by the committee, the Finance Minister appeared before the media and stated that one nominee had been dropped because of a familial relation with someone in the government. Is there any law in Pakistan prohibiting relatives to apply for, or occupy public offices? Or was the relation a terrorist, convict or criminal and some kind of tribal law of vicarious criminal liability or collective responsibility was somehow being applied instead of personal liability or credibility? The Finance Minster is himself said to be related to the Prime Minister. Shouldn’t one at least quit office on the basis of the premise given by the Finance Minster himself?

This may be farfetched but let me be direct. The Chief Election Commissioner recommended and finalized by a previous committee has his son-in-law working with the federal government on a position higher than his substantive status. Shouldn’t we be applying the logic given by Finance Minister to this relationship as well?

Article 24A of the General Clauses Act provides for giving reasons wherever any decision is taken to the detriment of an individual. Would anybody provide cogent, legal and valid reasons for dropping the names of TWENTY persons from the final selection of ECP members?

A serving judge of a High Court resigned a few weeks earlier in order to become eligible for appointment as a member of the ECP. As a judge he had obviously been enjoying lucrative perks, privileges and powers, and would have been entitled to post-retirement benefits. But he must have been guaranteed his appointment to the ECP well in advance, before he decided to forfeit his existing position, since surely, the lesser emoluments were not the alluring factor. Appears to be the height of transparency. We legislate to violate the laws. And as Shakespeare would put it, we make fools of us all.

Moreover, a former bureaucrat selected for the Commission is an officer of the District Management Group (DMG), batch of 1976. In the CSS examination 1976, since a sufficient number of candidates from Sindh had not cleared the written exam, the quota of seats reserved for Sindh should have been carried forward to the next exam in 1977. But the then Prime Minister arrogated authority to invite failed candidates from Sindh to fill up the seats. Reportedly this bureaucrat is one of those.

For a long time we have heard a lot of critique on the composition of the previous Election Commissions, which comprised of judges as members. The Treasury and the Opposition had agreed to amend the Constitution via the 22nd Amendment, enabling people other than judges to be eligible for appointment to the Commission. If 75% of the members appointed turn out to be judges again (only retired this time), could any positive change be expected from the new Election Commission?

Colossal resources and effort must have gone into amending the Constitution. Did we really need to squander them? Would anybody question this extravagance and would we ever get a reply?

These parties just sit in committees to make a show of democracy but actually it is the murder of merit in the garb of “democracy”. Yes, all parties included. So much for free and fair elections!

Rule of law zindabad. Democracy paindabad.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Mohammad Hassan Shaigan

The writer holds an LL.B degree from the University of London and a Postgraduate Diploma in Politics from the London School of Economics and Political Science. He is currently working as an Advocate and Legal Associate with Khawaja Haris Ahmed, Senior Advocate Supreme Court. He is also a Member of the 7th Youth Parliament Pakistan. He frequently writes articles on cricket for the Express Tribune and tweets as @HassanShaigan



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