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20 Amendment: A Step Towards Transparency in Politics

How the 20th amendment in the constitution of Pakistan can be proved beneficial for the stability and continuity of democracy

It is a great achievement by the parliament to get passed its proposed amendment in article 224 and introduce article 224-A in the constitution. It will be a step towards transparency in the selection of the care taker prime minister and chief minister and hopefully ensures transparent election process and chances are there that political parties will not resort to blame game after elections.

Before 18th amendment the care taker cabinet in national assembly and provincial assemblies was appointed by the president and governors and they used their discretion in these selections and normally their close friends were selected. After the introduction of 18th amendment president was to appoint the care taker prime minister and chief minister in consultation with the prime minister and the leader of the opposition. But we have experienced that the consultation was never meaningful and many objections were raised by different quarters on selection of the care taker prime minister or chief ministers.

Now the parliament has further improved the law and has passed 20th amendment for the constitution. This amendment has also been passed by the senate and became law after getting signed by the President of Pakistan Asif Ali Zardari.

Through 20th amendment the national assembly has introduced provisions for appointment of the care taker prime minister and chief minister, if the prime minister and the leader of the opposition do not agree on the selection of the care taker prime minister, the procedure provided in article 224-A will be followed.

In case the Prime Minister and the Leader of the Opposition in the outgoing National Assembly do not agree on any person to be appointed as the care-taker Prime Minister, within three days of the dissolution of the National Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the National Assembly, comprising eight members of the outgoing National Assembly, or the Senate, or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition respectively.

The Committee constituted under clause (1) or (2) shall finalize the name of the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the referral of the matter to it:

Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days.

The incumbent Prime Minister and Chief Ministers shall continue to hold office till the appointment of care-taker Prime Minister and Chief Ministers, as the case may be.

Notwithstanding anything contained in clauses (1) and (2), if the members of the Opposition are less than five in the Majlis-e-Shoora (Parliament) and less than four in any Provincial Assembly, then all of them shall be members of the Committee mentioned in the aforesaid clauses and the Committee shall be deemed to be duly constituted.

An effort has been made to solve the ever standing issue of selection of the care taker prime minister or chief minister. And procedure and time frame has been prescribed for selection of care taker prime minister and chief ministers. Earlier objections were always raised that since the care taker prime minister or chief minister belonged to the ruling party so they might use the public resources to help the ruling party candidates in winning the elections. This also provides roots to the allegations of pre poll rigging.

Now hopefully it will resolve this issue and no such allegations shall be echoed. Moreover, since the members of the federal and provincial care-taker cabinets were appointed on the advice of the care-taker prime minister and chief ministers respectively, and the selection of the selectors had always been objected, therefore, the care taker cabinets appointed on their advice were also not accepted. Now since the care taker prime minister and chief minister will be selected through a process acceptable to the opposition and ruling party, so the selections of the care taker cabinets will also be not seen with suspicion.

And another important feature of the 20th amendment is that the members of the care-taker cabinets including the care-taker prime minister and chief ministers and their immediate family members shall not be eligible to contest the immediately following elections to such Assemblies.

Explanation:- In this clause “immediate family members” means spouse and children.

A possible practical problem and its solution!

According to the 20th amendment the care taker Chief Minister for the province of Baluchistan has to be selected by the Chief Minister and the leader of the opposition. In case a Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly do not agree on any person to be appointed as the care-taker Chief Minister, within three days of the dissolution of that Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the Provincial Assembly, comprising six members of the outgoing Provincial Assembly having equal representation from the Treasury and the Opposition, to be nominated by the Chief Minister and the Leader of the Opposition respectively.

The Committee constituted shall finalize the name of the care-taker Chief Minister,  within three days of the referral of the matter to it:

Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days.

Now the question is that Balochistan assembly has only one opposition member, what will happen if the Chief Minister and leader of the opposition do not agree on a person for a care taker Chief Minister? Than the committee that has to be constituted, consists of six members, three from treasury benches and three from opposition benches. But the situation in Balochistan assembly is very unusual. It only consists of only one member opposition. What will happen if the outgoing chief minister and outgoing opposition leader do not agree on a care taker chief minister? How will the committee be formed and how will they decide the matter?

The answer to the question to a situation, that if the opposition consists of one member only, as prevalent in Balochistan, the answer has to be found within the constitution itself.

Article 224A ( 5) of the constitution reads as under:-Resolution by Committee or Election Commission.-

‘(5) Notwithstanding anything contained in clauses (1) and (2), if the members of the Opposition are less than five in the Majlis-e-Shoora (Parliament) and less than four in any Provincial Assembly, then all of them shall be members of the Committee mentioned in the aforesaid clauses and the Committee shall be deemed to be duly constituted.’

Now the situation in Balochistan is, that in this scenario the committee will consist of four members as against six member usual committee i.e. three members from the treasury benches and one from the opposition benches.

It may appear that one member opposition may not be in position to dictate his terms in the afore mentioned committee and the treasury members will have more votes in the committee and one member opposition leader may be over powered or out voted in the committee and the care taker Chief Minister will be selected by the treasury benches.

The actual procedure for selection by the committee is not mention in the amendment.  Whether the matter will be decided with consensus or with the vote of majority by the committee? The constitution is silent. Yet, hopefully the intention may be that the matter for choosing the care taker Chief Minister may be decided with the consensus of the committee and one member opposition leader will not be over powered and out voted.

In case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:
The word consensuses means that they all have to agree in Toto and the decision in the committee will not be taken by the vote of majority.
One member opposition leader, if do not agree with other members than it would mean that consensus has not been reached and the matter will be referred to chief election commissioner for decision. And if it is taken that the matter before the committee is to be decided by the vote of majority, with one member opposition in the committee, he shall face difficult situation in selection process and chances are there that the care taker chief minister will be selected with the treasury benches sole choice. The better option is to reach the decision with consensus and in case of any dispute the matter may be than referred to the Chief Election Commissioner.

A213. Chief Election Commissioner.

The answer lies in the post of the Chief Election Commissioner, who himself is to be selected through another process which is mentioned in A213 of the constitution. The Chief Election Commissioner  is appointed by the President from the names sent to him by the parliamentary committee. The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.

The Parliamentary Committee to be constituted by the Speaker, it shall comprise fifty percent members from the Treasury Branches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders:

Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:

Provided further that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate.

Hope fully the matter in case of the Balochistan assembly will be resolved with political maturity and hopefully we are not faced with yet another constitutional crisis.

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