Now the 22nd Amend­ment

Pakistan Observer - - OPINION - M Yasir Kayani Email:

THE body of the 22nd Amend ment 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 this. Elec­toral process is a back­bone of any demo­cratic set-up, and with­out hold­ing a fair and free elec­tion, no democ­racy could con­tinue.

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 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 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. 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 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 twoparty sys­tem.

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 em­pires for the game they are set to play. — The writer is an High Court Ad­vo­cate based in La­hore.

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