Now the 22nd Amendment
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.