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25 Feb - 02 Mar , 2012
VIEWPOINT20th Amendment To Ensure Fair


Like the 18th Constitutional Amendment unanimously passed by the Parliament in April 2010, the just approved 20th Amendment has brought about all-embracing changes in the basic document of Pakistan to ensure that next general elections are fair, just and transparent in which every political player has equal opportunity and even playing ground and none is robbed of its popularity on the force of administrative manipulation and gerrymandering. The new amendment is indeed creditable and demonstrates the maturity of parliamentary forces specifically two major political powers, the ruling Pakistan People's Party (PPP) and the opposition Pakistan Muslim League-Nawaz (PML-N). This clearly established that they have the guts and ability to achieve consensus on even ticklish issues when they willed. But they chose to remain poles apart on issues that they did not want to sort out even regardless of their importance for Pakistan. For example, they failed to record any noteworthy progress on the finalization and subsequent approval of the new accountability law in place of the existing National Accountability Ordinance (NAB) 1999 of Pervez Musharraf. Ironically, this bill is under consideration in a National Assembly committee since mid-2008 where the two main political parties continue to fight and scramble, but are nowhere near unanimity. This is deliberate because had they wanted to work out a consensus, they would certainly have secured it within no time, as they did in the case of the 20th Amendment. The accountability law is not a priority for them; of course, it is pathetic to see the least.
The preparation of the 20th Amendment provided a good opportunity to the opposition to force the government to incorporate in it some direly needed fundamental reforms for appointment of heads of 20th Amendment To Ensure Fair Electionspremier state entities like the Federal Revenue Board to improve their conditions and reduce the official say in such nominations. Moreover it was necessitated to legitimise 28 federal and provincial by-elections, held in the absence of a properly constituted Election Commission of Pakistan (ECP), after the suspension of the membership of these lawmakers by the Supreme Court. But the PML-N paid no need to this aspect or to putting in place a watertight accountability mechanism. The government is already unwilling to make radical changes to beef up tax collection and curb corruption.
While the amendment was primarily dictated to remove the suspension of the membership of 28 legislators so that they can cast their votes in the Senate Elections (to the mutual advantage of the parliamentary forces), the opposition forced the government to include in the bill a package to empower the ECP to ensure fair, free and transparent general elections. For the same purpose, it compelled the ruling party to change the mechanism of appointment of caretaker prime minister and chief ministers, which was also intended to make sure that next parliamentary polls are not influenced by the present government. The ECP has often been accused of loose control leading to rigging in the elections, at times deliberate and at times by default due to the weak setup. That's why several gaps existing in the Constitution that were always exploited by the government of the day to its advantage against their rivals in the electoral contest have been done away with, and the institution of the ECP, not an individual, the Chief Election Commissioner (CEC), has been tremendously empowered and made strong to carry out the exercise honestly and truthfully as ordained by the Constitution. The strengthened ECP comprises the CEC and the four ECP members, who are retired high court judges. All the key decisions will now be taken by the ECP, not the CEC alone, as it used to be before.
The incumbent CEC, Justice (retd) Hamid Ali Mirza, retires in the later half of next month after completing his three-year tenure. His successor would be appointed for five-year term. The four ECP members, who were recently nominated, will also have similar terms. They have been sworn in like the CEC; they have secure and guaranteed tenure as they can't be removed without following the constitutional procedure prescribed for a superior court judge; they are disallowed to hold any office of profit after the expiration of two years following ceasing to hold their present positions; it will be the duty of the ECP (CEC and its four members), not the CEC as provided earlier, to organise and conduct elections and make such arrangements as are necessary to ensure that the polls are conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against; and they are charged with the duty of preparing electoral rolls for elections and revising the voters' lists annually, organising and conducting election to the Senate to fill any vacancy and appointing election tribunals. The purpose of taking powers from one individual, who could be whimsical and dance to the tunes of the rulers of the day, and vesting them in the ECP, has reinforced the institution.
Another highly vital change introduced by the 20th Amendment relates to the appointment of caretaker prime minister and provincial chief ministers. The change has dispensed with the dominant role of the president of Pakistan and his provincial representatives, the governors, in such nominations. The word of "consultation" has been erased to achieve this objective. The PML-N insisted on its removal in view of its bitters experience in the appointment of two successive chairmen of the National Accountability Bureau (NAB) and formation of the Abbottabad Commission, when leader of the opposition Chaudhry Nisar Ali Khan was just informed, not "consulted" in a meaningful and result-oriented manner. Earlier, under Article 224, the president was to "select" caretaker prime minister in "consultation" with the prime minister and opposition leader in the outgoing National Assembly. The governor was to hold "consultation" in the similar manner, but now the ECP will take the final decision on caretaker prime minister and chief ministers if the two earlier processes provided in the 20th Amendment failed to produce consensus. In case the prime minister and opposition leader don't agree on any person to be nominated as caretaker premier within three days of the dissolution of the Lower House of Parliament, they will forward two nominees each to committee to be immediately constituted by the National Assembly Speaker comprising eight members of the outgoing National Assembly or the Senate having equal representation from the treasury and the opposition to be named by the prime minister and the opposition leader respectively. The same procedure will be followed in the provinces and the ECP will be the final arbiter when no consensus was reached in the earlier mechanisms.
The committee is bound to finalize the names of caretaker prime minister or chief ministers within three days of the referral of the matter to it. But in case of its inability to decide the matter within this period, the names of the nominees would be referred to the ECP for final decision within two days. If the members of the opposition are less than five in the national or any provincial assembly, all of them will be members of this committee, which will then be deemed to be duly constituted. This was particularly provided to take care of the low numerical strength in the present Sindh and Balochistan assemblies where even none is opposition leader. In Balochistan, all the members except one (Yar Mohammad Rind, who too is facing disqualification proceedings) are part of the government. In Sindh, the situation is not much different.
Notably, if the president's role in nominating caretaker prime minister and chief ministers has been eliminated through the 20th amendment, the opposition leader has emerged as a powerful player in such decisions. He will have as much weight say as the prime minister. Obviously, this is applicable not only to the present assembly, but will be relevant in future as well when someone other than Chaudhry Nisar Ali Khan will hold this position.

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