Electoral System Of Pakistan Suggestions For Reform

ELECTORAL SYSTEM OF PAKISTAN SUGGESTIONS FOR REFORM ELECTORAL SYSTEM OF PAKISTAN SUGGESTIONS FOR REFORM By Dr. Faqir Hussain, Joint Secretary, Pakistan Law Commission The founding fathers who formulated the Objectives Resolution which was adopted as a preamble to every successive constitution and later on added to the substantive part of the present (1973) Constitution [l1 conceived Pakistan to be a democratic polity, governed through the "chosen representatives of the people". The Resolution provides that the State shall exercise its authority as a "sacred trust" on behalf of and for the welfare of the people. This phraseology indeed furnishes the "normative moorings" [Z] of our Constitution, namely that the system of governance must be democratic and representative one, based on the consent of the people. The Constitution provides for a parliamentary government based on majority principle both at the Centre and ‑Provinces. To make this provision practicable the Constitution provides for the formation .of political parties subject to "any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan". [3] The Political Parties Act, 1962 regulates the conduct and functions of such parties. Notwithstanding the given constitutional and legal framework for a party‑based parliamentary system, its actual operation neither reflects the vision of the founding fathers nor fulfils the expectations of the people. Norms and principles, traditionally associated with parliamentary democracy, failed to take roots in our democratic culture, thereby subjecting the system to meta legal and extra‑constitutional strokes, which on occasions caused its collapse. The frequent breakdown of the system exacted a heavy toll on the nation in the shape of breaking its territorial integrity, hampering national integration, retarding economic development and disrupting the political process. It may perhaps be unreasonable to blame the politicians alone for the political crisis and collapse of the system, as other institutions, particularly bureaucracy and military equally contributed towards the crisis, however, having said so, let it also be stated without any fear of contradiction that it were the politicians who created and mismanaged the crisis, thereby paving the way for extra‑legal intervention. It is also a sad fact of our political history that our politicians never learnt proper lessons from their previous blunders and mistakes. Conspiratorial politics and switching of loyalties remained the trade names in our political systems whereas lust, for power and craze for spoils remained the dominant characteristics of our politicians. Consequently, the political scene that we witness today presents a bleak picture and foretells a gloomy scenario of the future. Parliament, the third pillar of the State structure, occupying a position of primacy among government organs, enjoys the unique distinction of being a sovereign and independent body. It is entrusted with responsibility for enactment of laws for good governance; criticism of government policy thereby exercising control over the executive; and ventilation of public grievances so as to seek their redressal. The composition, role and functions of parliament are clearly laid down in the Constitution. Its prestige and privileges are distinctly spelled out. Despite such constitutional safeguards, the performance of Parliament ‑‑ or for that matter that of the provincial assemblies ‑‑ has been, to use a euphemism, disappointing. It simply does not play its role and cannot pull its weight. Evaluating the performance of our Parliament over the 'years, one clearly observes a qualitative decline in its role and functions. The quality of leadership has gone down and consequently the standard of debates has lowered. As a result, the few enactments it was able to frame, reflect the poor standard of calibre and intellect of our parliamentarians. By and large, the primary functions i.e. legislation, policy formulation and redressal of peoples' grievances are relegated to the background and substituted by somewhat intriguing and at times patently illegal role of supervising development projects, sanctioning loans, permits, plots and seeking appointments in service etc. It is primarily due to such uncalled for and undesirable activities of our politicians that the word `politician' is increasingly becoming a synonym for corruption. Honourable exceptions apart, a politician is perceived to be some one whose sole motto in politics is to serve self‑interest, gain self -aggrandisement and secure self‑enrichment. This state of affairs does not augur well for the future of parliamentary democracy. There are already signs of discontent with the role of parliament and misgivings about its beneficence and utility for the society. Its image and prestige has tumbled in public esteem and its credibility has touched the bottom line. There is no scope for further slide or decline. It is high time we carry out an analysis of the performance of parliament and undertake an assessment of other related organisations, issues and factors which have a direct bearing on the parliament, so as to pinpoint the loopholes in the system and suggest remedial measures. The account that follows is an appraisal of the organisation and role of the political parties and the prevailing system of election together with proposals for their reformation. The proposed reforms require amendments to law as well as the Constitution. The changes may sound drastic but then drastic changes are the need of the hour. 1. Organisation of the political parties: "Parliamentary Government is a Government of the party and a party Government is a vital principle of a representative Government," so said the Supreme Court in its celebrated judgment in the case of Benazir Bhutto v. Federation of Pakistan. [4] Indeed parliamentary system cannot be visualised, muchless practised in the absence of political parties. A political party was defined by Edmund Burke, [5] "as a body of men united, for promoting by their joint endeavours, the national interest, upon some particular principles in which they are all agreed. Parties are defined in terms of commonly held ideas, values or stands on national and social issues. A political party is distinguished from other political organisations by its concentration on the contesting of election." In keeping with the requirement of their peculiar domestic environment, the United Kingdom and United States have adopted different rather divergent policies and approaches towards regulating the activities of political parties. The United Kingdom leaves party affairs to be regulated through its own constitution and by‑laws whereas the United States regards parties as "in separable from the republican form of government", [6] and the party organisation as well as its functions together with the rights and interests of its members, are subject to statutory regulations. [7] In Pakistan, a middle course is followed. Here parties are regulated but to an extent. The Political Parties Act, 1962, deals with the subject. The Act, however, is very sketchy and does not cover certain important and vital areas of party organisation and functions. It was perhaps thought desirable that statutory provisions should be kept to the minimum and the issues of organisation and functions be regulated through the parties' own constitutions. It was hoped that with the passage of time education and political consciousness will' help the parties to overcome the problems of organisation and their performance will gradually improve. This was alas not to be, with the result that today, barring a few exceptions, the organisation and functions of the political parties, are in a disarray. They are headed by leaders whose claim to office is based either on hereditary principle or their selection by a small coterie of nominated members of the parties' central committees. The rest of parties hierarchy consists of nominated members by the said leader. It is thus obvious that the very organisation of our political parties is autocratic and such undemocratic entities cannot be expected to further the cause of democracy in our country. Many evils that we see today in our political system, such as horse‑trading, heavy expenditure on election campaign and the election of inefficient and corrupt persons to legislature can be directly attributed to the structural weaknesses in our political parties. To remedy the situation the following amendments are proposed to the Political Parties Act, 1962: (i) Election for office‑bearers: It should be made obligatory on the political parties to hold elections every two years to various offices in the party structure, failing which such parties should not be allowed to contest the election. (ii) Nomination of candidates: Every candidate nominated for election must be selected by the parties' central committee on the recommendations of the provisional committee. In making such nomination the candidate's qualifications, antecedents and service record must be given due consideration. (iii) Reservation of seats for women: A political party should assign at least 15% posts in its hierarchy to women members and should allot 10% of ticket to female candidates. This ratio should be gradually increased. 2. Defection: Due to the presence of strong and organised political parties and a fairly developed political culture, the contemporary political history of Europe and North America is not familiar with the political connotations of the term `horse‑trading'. In the modern history we do not find any incidence in these countries when a government was toppled due to defection. The problem of defection, however, is not new to the political culture of the sub‑continent. Both in the colonial era as well as since independence both India and Pakistan faced the problem of members switching loyalties, not necessarily due to any prick of conscience or for the sake of upholding principles or serving national interest but purely for personal gains and selfish motives. The Indian politics experienced a few sporadic incidents of defection but the Parliaments quick response in the shape of constitutional amendment [8] put an end to any future widespread abuse of the practice. The Indian Courts fully supported the law and strictly enforced the prescribed penal of disqualification. [9] The situation in Pakistan, however, is together different. Its political history is replete with incidents of horse‑trading, [10] some of which were sponsored by or at the behest of the highest State functionaries. Attempts were made to check horse‑trading by introducing penal provisions to the Political Parties Act. The problem of defection was first tackled in 1985 when through an amendment in the Political Parties Act, 1962 a new section (section 8B) was added to this Act which provided that a member of legislature who defects or leaves his party shall be disqualified by the. Election Commission on a reference filed by the leader of the parliamentary party. Appeal against the. decision of the Election Commission lay to the Supreme Court. Later on through an Ordinance in 1990, [11] the law was made more stringent by defining the word `defection' to include, accepting by a member any office under the government of a political party other than his own or voting or abstaining from voting in the legislature, contrary to his party direction. On the expiry of this Ordinance it was re‑enacted in 1991, [12] however, it was not placed before the parliament and consequently lapsed 4 months later. In October 1993, the Care‑taker Government sought to introduce tougher provisions as to defection. Through an Ordinance, [13] the parliamentary party was authorised to decide the question of disqualification of its member. Such member may file an appeal against the decision to the Speaker. This Ordinance too was not placed before the Parliament and expired on February 6, 1994. As a result, the original provision (section 8B) of the Political Parties Act, 1962 revived. In the absence of any effective provision as to defection, the country is once again confronted with the problem of defection and the Province of N: W.F.P. is in the grip of worst political crisis of its history, so much so, that the Provincial Assembly has been suspended and Governor rule imposed in the Province. In the contemporary world, Pakistan perhaps presents the worst example of political crisis due to horse‑trading. The problem has reached a magnitude when no government, no matter how strong and stable can feel secure and be assured of its survival. The situation is indeed very alarming and calls for immediate remedial measures. The following reforms are suggested: (i) A member of legislature should be disqualified if he relinquishes the membership of the party on whose ticket he got elected. (ii) Subject to provision for conscience vote, a member should be disqualified when he defects from his party by voting or abstaining from voting in the legislature, contrary to his party direction: Provided that the penalty of disqualification shall not be incurred when at least 1/3rd members of a party in the legislature form a splinter group, due to differences on principles or policy. However, in that eventuality each group should be treated as a party and the defection clause shall apply to it accordingly. (iii) An independent member shall be disqualified on his joining a political party. (iv) The question of disqualification should be decided by the Election Commission on a reference made by any concerned citizen. Appeal against the decision of the Election Commission shall lie to the Supreme Court. 3. Qualifications of candidates. Articles '62 and 63 of the Constitution describing qualifications and disqualifications of members of legislature should be reviewed with a view to rationalise their provisions and make them more realistic. Furthermore, qualifications as to education may be introduced for candidates seeking to enter the legislature. It is ironic that while matriculation is prescribed to be the minimum qualification for joining the government service in the lowest grade (Naib‑Qasid) no such 411alifications are prescribed for a member of legislature who is required to partake in an extremely important task of enactment of laws and formulation of policy. It is, therefore, suggested that minimum qualifications be fixed for the members of legislatures. In this respect Intermediate (FA./F.Sc) qualifications. be prescribed for the member of Parliament and Matriculation for a member of Provincial Assembly. 4. Bar on contest against more than one seat: Article 223 of the Constitution should be suitably amended so that a candidate may not contest election against more than one seat in a house i.e. of Parliament or Provincial Assembly. The practice of contesting election against more than one seat costs public money and results in inconvenience to voters. This practice unnecessarily adds to the burdens of the Election Commission. It serves no useful purpose except perhaps to appease an egocentric or to bolster someone, lacking self‑confidence. It is, therefore, proposed that no candidate be allowed to contest election against more than one seat in a house i.e. of Parliament or Provincial Assembly. 5. Minimising election expenditure: Due to excessive expenditure on 'election campaign only the feudal, industrialist and business classes or drug barons and dealers in black money can afford to enter the election arena. The ever‑rising increase in election expenditure makes it well nigh impossible for professionals of middle class people to participate in the election. Thus excepting a few odd cases of party candidates, election contest is practically restricted to moneyed class. The prescribed limit of rupees one million for National Assembly and rupees six lacs for a Provincial Assembly seat is too high a cost to be borne by an honest middle class person. There is thus definitely a need for reforms in this area so as to restrict election expenditure. The suggested measures listed below will besides minimising election expenditure also help in creating a peaceful and congenial atmosphere for the conduct of election: (i) The current limit of Rs.1 million for National Assembly and 6 lacs for Provincial Assembly should be reduced to Rs. 5 lacs and 3 lacs. (ii) The election campaign should be restricted to 3 weeks. (iii) Processions and roadside meetings should be banned on week days. (iv) Banners and large size posters and advertisements in the newspapers should be banned. (v) Inflammatory speeches and defamatory statements by candidates aimed at character‑assassination of the opponent or arousing parochial, religious or sectarian feelings/sentiments should be prohibited. 6. Declaration of assets: (i) With a view to check the temptations towards amassing wealth through foul means, a new law should be enacted, requiring the elected representatives to submit to the Election Commission an annual declaration of assets in respect of themselves and the dependent members of their family. Such a step, it may be noted, will b;; in lute with the manifesto commitment of the PPP. (ii) Further more to avoid conflict of interest, the office‑holders such as President, Prime Minister, Governor, Chief Minister, Ministers, Parliamentary Secretaries should lac required to put their stock and property holdings into a blind trust during the term of their office. Such a provision, it may be mentioned, was recently mooted in the Parliament of Taiwan. 7. Development Funds: With the restoration of Constitution in 1985 and revival of political process, certain new measures aimed at bolstering the status of public representatives and expanding their influence were introduced, including inter alia, the allocation of funds for development work in their constituency, quota for appointment in services, sanctioning of telephone connections on priority basis, and recommending applications for acquiring loans and performing Hajj etc. These measures were implemented with a view to sustain the incumbent government, based on non‑party system. The policy was designed to strengthen the culture of political patronage so as to combat the influence of political parties and pave the way for an electoral system devoid of participation by the political parties. Later on the political parties joined the system and formed governments, however, political expediency prevailed and the policy was retained. The abovementioned activities of our public representatives are totally irrelevant to the functions assigned to them under the Constitution and indeed impede their performance as law‑makers, besides offering avenues for corruption. The policy of sanctioning funds for development activities and their supervision by public representatives impinge upon the functions of local body institutions, and also duplicates the functions of existing government departments such as PWD and C&W etc. created primarily for the purpose. It is therefore desirable that this policy is scrapped and public representatives relieved of the work superfluous to the role assigned to them under the law. Instead the Government should devise a policy whereunder public representatives are enabled to recommend development projects for approval and may also supervise their implementation. This will save the time and energy of public representatives to be gainfully utilised for more important tasks such as law‑making, exercising control over the executive and resolving public grievances. In view of the latest judgment of the Supreme Court that an Ordinance once issued may not be re‑enacted, [14] it is all the more desirable that the legislators gave maximum time and attention to their primary function, namely legislation, failing which the country may have to face the problem of legal vacuum, which will, of course, put the very survival of the system in jeopardy. The measures suggested above therefore need immediate attention. The Supreme Court judgment lends support to the call for necessary reforms in the electoral system so that the impending catastrophe could be avoided and the country put on the road to progress and prosperity. REFERENCES [1] Article 2A was inserted by the Constitution (Eighth Amendment) Act, 1985. [2] Ahmad Tariq Rahim v. Federation of Pakistan PLD 1982 SC 646 at 666 [3] Article 17(2). [4] PLD 1988 SC: 416 at 516. [5] Edmund Burke, Thoughts on the Causes of the Present Ditcontents. [61 Smith v. Allwright, 321 US 649 [7] Wene v. Meyner, 13 NJ 185, 98 A2d 573; State ex rel. Ekern v. Dammann, 215 Wis 394, 254 NW 759. [8] 10th Schedule, added by the Constitution (52nd Amendment) Act, 1985 [9] Mian Bashir v. State AIR 1982 J&K 26, Ananda v. Chief Secretary AIR 1966 SC 657; [10] Some major instances are: (i) In 1953 on the dismissal of Khawaja Nazimuddin's Government, all his Cabinet Ministers joined the new government of Mr. Muhammad Ali Bogra. (ii) In 1954 Abdus Sattar Pirzada, the Chief Minister of Sindh enjoyed the support of 74 out of 110 members of the Provincial Assembly on his stand against the formation of One‑Unit, however, with his replacement by Ayub Khoro all such members changed their opinion and voted for One‑Unit. (iii) In 1955 with the connivance of Sikandar Mina a new Republican Party was launched which was quickly joined by the Muslim League and other members of the Constituent Assembly. (iv) During the 1970 the PPP had negligible strength in the Provincial Assemblies of N: W.F.P. and Balochistan, however, following the restoration of these Assemblies in 1973, this party formed Government in both these provinces. (v) On the dismissal of Mr. Junejo's Government in 1987, most of his Cabinet colleagues and party members joined the care‑takers set‑up of General Zia. ' (vi) In 1989, during the "no‑confidence motions" by Nawaz Sharif, Chief Minister, Punjab and Benazir Bhutto, Prime Minister of Pakistan against each other's government, certain members did switch loyalties for gaining ministerial slots. (vii) On 23rd February, 1994, during the no‑confidence motion against Pir Sabir Shah, the Chief Minister of N: W.F.P., two members of PML(N) joined hands with the Opposition. The resulting crisis led to the suspension of Provincial Assembly and imposition of Governor Rule in the Province.' [11] Ordinance X of 1990. [12] Ordinance VIII of 1991 [13] Ordinance XXX of 1993. [14] The Collector of Customs v. M/s. New Electronics PLD 1994 SC 363.