October 15, 2024
KATHMANDU – For the past few weeks, Pakistan has been embroiled in intense negotiation and political bargaining to pass a constitutional package bill in the Parliament. The ruling Pakistan Muslim League-Noon (PML-N) does not have the numbers to muster the support in the Parliament. This amendment is politically significant for the PML-N. On the other hand, Fazlur Rahman of the Jamait-ul-Ulema Islam-Fazl (JUI-F), with eight seats in Parliament, is in for hard bargaining. It has insisted on arriving at a political consensus and has requested the government to delay the bill. The government appears to be in a hurry to pass the package as it will increase the tenure of the Chief Justice of Pakistan (CJP), Qazi Faez Isa, who is perceived to be close to the ruling coalition.
What added to the speculation is that on October 2, the Pakistan Supreme Court struck down its 2022 verdict, barring the legislators from voting against the party line, which would de-seat the legislator and force him/her to seek re-election while interpreting Article 63-A of the Constitution. Through an ordinance last month, the government already gave the CJP the power to reconstitute the Practice and Procedures Committee. The Special Bench constituted to hear the constitutional petition to review the verdict was not attended by Munib Akhtar, who protested and reclused himself from the Bench and Justice Mansoor Ali Shah, who was critical of the ordinance.
This ordinance is perceived to help CJP Isa constitute a favourable bench so that the PML-N government can pass the constitutional package that has already been delayed due to a lack of 224 seats (two-thirds majority) in the Parliament, even though the government attributed the delay to ‘strategic reasons’. It is still working to reach a consensus but, at the same time, trying to encourage legislators from other political parties to defy their party instructions and vote in favour of this constitutional package.
The PML-N has 75 directly elected seats, along with its coalition partners, the Pakistan People’s Party (PPP), which has 54 seats, and the Muttahida Qaumi Movement (MQM), which has 17 seats in the 266 directly elected seats in the National Assembly.
Power configuration
It is a known fact that the Army has a stake in Pakistani politics, and many think that it played a role in putting together the present coalition to politically marginalise Imran Khan’s Pakistan Tehreek Insaf (PTI) that, despite all hurdles, performed spectacularly in the February election.
Six months after this general election, the 70 reserved seats for women and minorities have not been distributed to the political parties based on proportional votes. The Supreme Court of Pakistan gave a verdict on July 12, saying that those PTI members who won the election as independents can claim the reserved seats as PTI seats. They do not need to join the Sunni Ittehad Council (SIC)—a party that could not even get one seat in the last election—to claim reserved seats. The Election Commission is yet to allot seats to the PTI despite the court’s threat of a contempt trial against it. After the reserved seats are allotted, the new seat arithmetic will not change the power configuration but bolster the PTI’s political presence.
Interestingly, the government’s proposed constitutional package was shrouded in secrecy, giving rise to speculation about its intent and urgency. The government defended its stance, saying the amendment has already been discussed in the Parliamentary Committee. It only relented when the JUI-F insisted on it in return for its support on September 14. According to media reports, some of the contents include establishing a constitutional court to unburden the Supreme Court, which devotes much of its time to deciding constitutional issues. According to the government, 60,000 cases are pending before the Supreme Court, of which 25 percent are constitutional petitions.
For nearly a decade, Pakistan’s judiciary, including the Supreme Court, has emerged as a political battlefield for the political parties, the Army and the Inter-Services Intelligence (ISI). The Supreme Court has also been divided over the constitutional propriety of essentially what are political issues. Unsurprisingly, there is a strong perception that the government wants to extend the tenure of Chief Justice Faez Isa, who is retiring on October 25. Justice Mansoor Ali Shah is going to be the next CJP.
Issue of reserved seat
On July 12, the Supreme Court of Pakistan directed the Election Commission to distribute the reserved seats to the Pakistan Tehreek Insaf legislators who contested as independents. The court asked the party to submit the list of candidates for the reserved seats and also asked the PTI-linked independents to submit affidavits stating their allegiance to the party.
In the intra-party elections case of January 13, 2024, the Supreme Court gave a verdict that the PTI cannot retain its election symbol as it failed to hold an intra-party election, forcing its candidates to contest the election as independents. While a decision was made earlier that the PTI independents would join the SIC to claim these seats, after the Supreme Court’s decision, the party applied for the allocation of reserved seats.
The Election Commission of Pakistan said it would implement the SC’s order, but it held several meetings and could not arrive at a decision, further delaying the allotment. In July, it notified only 39 candidates from other political parties but not from the PTI. It said it does not have a valid organisational structure and does not know whom to approach to verify the PTI’s nominated candidates for the reserved seats. After the intra-party election verdict, the ECP did not recognise the structure of the PTI.
To nullify the SC verdict on the allocation of reserved seats, the Parliament passed The Election (2nd Amendment) Bill 2024, seeking amendments to sections 66 and 104. This means if the candidate has not affirmed his affiliation to the political party with the returning officer at the time of being granted an election symbol, it cannot have a claim to reserved seats based on proportional representation. After the amendment, it again sought the SC’s clarification on September 25. The Supreme Court passed strictures on the EC, saying the ECP’s action “significantly infringe upon the rights of the electorate and corrode their own institutional legitimacy.”
While the reserved seat allocation remains unsettled for political reasons, the future of constitutional reform packages remains lingering. The JUI-F and PTI have announced that they will thrash out a draft constitutional package on their own. Meanwhile, CJP’s Isa has announced that he is not interested in extending his tenure and will retire on the due date. Yet, in Pakistan’s evolving politics, where the military continues to play a dominant role, the final curtain on the package is yet to be drawn.