22nd Amendment Of The Constitution 1973: A Mixed Blessing
Pakistani Parliament is in process of approving the 22nd amendment to the Constitution. The amendment proposes to introduce some changes in the manner of appointment and qualifications of members of the Election Commission (hereafter as Commission). Once the election of 2013 was concluded, many issues were highlighted and debated about the impartiality and autonomy of the Commission as well as qualifications of its members. The present amendment seems to address issues like these.
The electoral process is a backbone of any democratic setup, and without holding a fair and free election, no democracy could continue. It was perhaps this realization which culminated into the formation of a Parliamentary Committee on Electoral Reform. The Committee has proposed various measures for free and fair electoral process. Some of which pertains to the appointment and qualifications of the members of the Commission. These matters have been laid down in the Constitution, so any modification to them could only be carried out through a constitutional amendment. The present Commission is going to expire early next month and the government is interested to constitute a new Commission under the proposed arrangement.
The urgency on the part of the government is understandable, but it would have been a lot better, had the proposed amendment been debated in public. The manner of presenting the proposed amendment to the Parliament without any debate about its merits and demerits in public raises issues not only of the viability of the proposed amendment but also of unwarranted secrecy demonstrated by our parliamentarians in matters of such important nature. Anyhow, the proposed amendment is a mixed blessing: it would remove some shackles on the appointing process and qualifications of the members of the Commission, but at the same time some other issues of similar important stature and consequences would be left unaddressed.
At the moment, the members of the Commission are required to be judges of the superior courts and none other than judges could qualify as a member. The Commission appears, at present, to be an extension of the superior courts as it is manned by the judges of these courts exclusively. This legal arrangement leaves an impression as if the elections are conducted by the superior courts directly or indirectly which cannot be said to be a healthy sign for a developing democracy. This stringent requirement has been criticized by many on numerous other grounds. Some of the criticisms are: is there no one in any other profession to ensure impartiality and autonomy of the Commission; why the Commission has been converted into a dumping ground for the retired darling judges; ok even if the judges are the most impartial breed in the country, we should not confine our options to them constitutionally. According to the proposed amendment, technocrats and bureaucrats possessing high competence and credibility along with decades of meritorious service on their credit would also be considered for the appointment as a member of the Commission. This amendment would relieve the pain the previous government underwent, in 2013, for the appointment of members to the Commission particularly the chief election commissioner.
The Commission is constituted, at present, for three years and after the lapse of this tenure, all of its members go home leaving behind an institutional as well as constitutional vacuum. Considering this aspect, the new amendment has taken an innovative step to introduce a continuous body of the Commission similar to the upper house of the Parliament, i.e. the Senate. According to the amendment, the members will be appointed for a five years’ term, and after two and half years, half of its members would retire. This arrangement will only be followed once, but it would convert the Commission into a continuously living body.
At present, acting commissioner is appointed by the Chief Justice of Pakistan until the appointment of a regular chief election commissioner. This provision is now being amended and the proposed amendment provides that the senior most member of the Commission would assume the charge of the commissioner until the appointment of the regular commissioner. This amendment is likely to take away the Commission out of the overarching control of the Supreme Court and bestow some more autonomy to it. It would entrench a healthy democratic tradition that the Commission is an independent constitutional entity not managed or supervised by any other constitutional body.
Despite the some good initiatives and innovations for ensuring autonomy of the Commission, some concerns are not properly taken into consideration and their ill effect would survive the new amendment. The leader of the lower house and the opposition leader has been assigned extensive role in the process of the appointment of the members of the Commission according to the prevalent legal arrangement. This aspect has not been modified in the proposed amendment: they will keep on enjoying their wide-ranging share in the process even after the amendment. This dimension of the appointing process should have been readjusted a bit because the extensive role of a few would virtually reduce the multi-party democratic system of the country into a two-party system.
The present legal arrangement is anti-democratic in its spirit and fashion. It is engineered to give an impression to the voters -whose majority is illiterate- that the real electoral competition would be held between the two main stream parties led by the leader of the house and the opposition leader who are deciding for the umpire (i.e. the Commission) of the game (i.e. the election). This sort of constitutional arrangement might not have any adverse implication for the results of the electoral process in a well flourished democratic country, but in the country like ours where expectancy determines choice not reason, the voters would be dragged into two-party electoral competition marginalizing the other significant political players/parties. The other political parties should also be given some due in the process of the appointment of members of the Commission because this two-party system is susceptible to gross misuse.
In 2013, similar type of provisions for the appointment of caretaker chief minister for conducting the election in the Constitution was blatantly made mockery of in the previous election in Sindh. According to the said provisions, the caretaker chief minister was (and is still) required to be appointed by the leader of the house and the opposition leader. MQM, which had been an integral part of the Sindh government from 2008 to 2013, left the treasury benches and opted to sit on the opposition benches just a few months before the election. This treacherous move provided MQM along with PPP (the government) an absolute role in the appointment of caretaker chief minister depriving of the real opposition from any say in the process.
The crux of the matter is the appointment of members of the Commission should not be left at the mercy of those selected few who are the prime contenders of the upcoming electoral competition. The appointment to such important posts should have been made by comprehensive and all-inclusive selection process without giving a feeling as if the players are selecting the umpires for the game they are set to play.
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