Lacunae in 22nd Amendment

News & Views

Mohammad Jamil

In May 2016, the National Assembly passed, within minutes, an amendment in the Constitution envisaging so-called reforms in the Election Commission of Pakistan (ECP). The 22nd constitutional Amendment involves procedure to be adopted for the appointment of Chief Election Commissioner (CEC) and members of the Election Commission of Pakistan (ECP). The amendment was based on the recommendations of the Parliamentary Committee on Electoral Reforms regarding the qualification and other prerequisites for the CEC and the members of the ECP. It appeared that objective of this amendment was to make ECP free from judicial pre-eminence, as there was neither mention of training the field staff to check rigging and ensure fair elections nor empowerment of the ECP nor empowerment of the ECP because unless it is independent financially, it will be under the pressure of the government.
According to the amendment, in addition to a retired judge of the Supreme Court as was the case before amendment, a senior bureaucrat or a technocrat would be eligible for appointment as the Chief Election Commissioner. A retired judge of any high court will also be eligible for the office. Chief Election Commissioner and four members of the commission will be appointed with the consensus of the consensus of the Prime Minister and Leader of the Opposition. If the Prime Minister and the Leader of the Opposition fail to agree over a candidate, they could dispatch their recommendations separately to the parliamentary committee, which would have the final say in the matter. Each province would have one member in the Election Commission. Two members of the ECP will stand retired after two and a half years, while the other two would retire after the next two and a half years.
In addition to retired judge of Supreme Court and high court, retired senior bureaucrats or senior civil servants of grade 22 would be eligible for appointment as CEC. In case of vacation of CEC, the senior most member will assume duties as CEC, whereas previously the CJP used to appoint the CEC in such a case. Unfortunately, in the previous assemblies those with dual nationalities had graced vaingloriously its governmental quarters and legislative halls. The tax-evaders remained in the corridors of power. Yet they had the gumption to parade themselves as the paragons of virtues and role models, which they were not. Their deceptive masks have now started coming apart. In view of inability of the ECP to discharge its responsibilities efficiently and effectively, there was a question mark on it, and also on the good name of former Chief Election Commissioner Fakharuddin G. Ibrahim.
There has been a public debate on the need to make the ECP truly independent enabling it to hold elections in fair and transparent manner, but ironically the modus operandi suggested by the 22nd Amendment for the purpose is reflective of lack of broader vision as the reforms centred only on the criteria and procedure for appointment of CEC and Members of the Commission. Chief Election Commissioner should have been a judge of the Supreme Court or qualified to become a judge of the apex court and this would have added prestige and respect to the office of the CEC and the Commission itself. By adding the proviso that he could be a senior bureaucrat or technocrat, now it is pre-1973 position when CECs were required to be taken from the civil service. But this will not produce the desired results and lead to more controversies in the next elections.
Most commentriat and analysts hold the opinion that there is need is a need for financially and administratively independent Election Commission like the one in India to ensure genuinely fair elections. There was demand from the entire nation that the ECP should perform its constitutional role without fear or favor, and filter out all those who presented fake degrees, held dual nationality, evaded tax, defaulted on loans or indulged in criminal activities. It had the backing of the judiciary, the military and over and above all the people of Pakistan. But the ECP arguably failed on every count. Since the members of the ECP were nominated by the outgoing government and the opposition, their nominees were looking after their interest. In Pakistan, dynastic political parties and corrupt politicians that did not come up to Articles 62 and 63and members with bogus educational degrees had thronged its legislatures.
In January 2015, Inquiry Commission Judge Malik Ghulam Hussain Awan had presented report to the Election Tribunal (ET) on alleged polls-rigging in NA-122. The judge while recording statement before ET on the occasion of filing of inquiry report said, that “no clear evidence on rigging in this constituency has come to fore.” In the same breath, he admitted that “tremendous amount of negligence and slackness was demonstrated during polling in NA-122. As per law, it is mandatory that back side of ballot papers and counterfoils should bear stamp and signatures of polling staff but they lacked it”. He added that 30132 counterfoils did not bear stamp and signatures of the polling staff. Counsels for National Assembly (NA) speaker Ayyaz Sadiq and Imran cross-qestioned on the statement of IC judge Malik Ghulam Hussain. Counsels for NA speaker Ayaz Sadiq asked from IC judge as to the scale of rigging NA-122.
Judge said he has recorded statement that rigging has not been seen but negligence and malpractices of the staff have been seen which have been identified in report. Counsel for Imran Khan asked the IC judge during the course of cross questioning how the ballot papers had different colors. The idea of electoral reforms had caught the fancy of both government and opposition parties, whereas people were least bothered, as there was nothing in such scheme of things for them. As a matter of fact, it has nothing to do with the mass of the people, but an arrangement between the oligarchs to reach agreements on mutually acceptable standards for their greater mutual satisfaction. A committee had been formed comprising opposition and ruling parties’ members to prepare framework for electoral reforms but no noteworthy progress has been noticed.
—The writer is a senior journalist based in Lahore.

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