Assessment of the Quality of Democracy in Pakistan – Major Developments affecting the Quality of Democracy in Pakistan

June 26, 2015

The PILDAT Democracy Monitor attempts

to delineate the various developments, both negative and positive, that have

affected the quality of democracy in Pakistan during the second year of the

Federal Government in office from June 01, 2014 to May 31, 2015.

Positive Developments affecting

the Quality of Democracy in Pakistan: June 01, 2014-May 31, 2015

Political

Maturity saves Democracy

Members of the Jirga, comprising

representatives of parties such as the PPP, NP, JI, etc., played an active role

to resolve the crisis between the protesting parties and the PML-N Government¹

One of the greatest achievements

of the political process in Pakistan has been the coming together of the elected

political parties in the Parliament behind the Federal Government to save democracy

from an onslaught by PTI and PAT.

The maturity and support was

manifested by the condemnation issued against the sit-ins by almost all the

major political parties such as the PPP, JUI-F, ANP, PMAP, NP, etc., during

the Joint Session of the Parliament convened on September 02, 2014.² In a development

considered unprecedented in the history of Pakistan’s democracy, the Session

saw the Parliament stand united behind the elected Prime Minister and reaffirm

its commitment to democracy. An Opposition Jirga was also formed, consisting

of members belonging to the PPP, NP, PML and JI to act as mediators and resolve

the differences between the PTI, PAT and the Government on the issue of electoral

rigging.

Although the same period saw

considerable turn-out at the sit-in organized at D-Chowk, and the protest rallies

organized by PTI across Pakistan, Mr. Imran Khan’s call for Civil Disobedience

was not well heeded by the general public. The disturbances were largely a localized

phenomenon, and did not transpire into a nation-wide movement. Therefore, the

larger public, prima facie, made a decision to stay away from attempts

to topple the Government through means considered unconstitutional by many.

Greater

Transparency: Provincial Assembly of the Punjab releases Members’ Attendance

Online

The Provincial Assembly of the Punjab has

made attendance available online on its website now

In a welcome development, the Provincial Assembly

of the Punjab became Pakistan’s first Legislature to release the attendance

of its members online. The initiative covers the attendance of all the legislators

from the 12th session onward of the current 16th Assembly.³

PILDAT lauds the decision by

the elected leadership of the Assembly for taking the much-needed initiative.

Citizens need to know the attendance and performance of their elected representatives,

and withholding of this key information by other Legislatures violates every

basic requirement of representation and of transparency, a cornerstone of a

democratic polity.⁴

It is therefore recommended that

the leadership of the other Legislatures, especially that of the National Assembly

of Pakistan, follow the commendable precedent set by the Provincial Assembly

of the Punjab. Relevantly, developed Legislatures, such as the Indian Parliament,

also post attendance of the members of both the Lok Sabha and the Rajya Sabha

on their official website regularly.

Positive

Developments on Local Government Elections in Pakistan

Local Government elections in the

Cantonments, Khyber Pakhtunkhwa, and Balochistan during the second year of the

current Government were one of the positive developments for Pakistan’s

democracy⁵

The period under consideration finally saw some

positive movement on Local Government elections primarily because of the country’s

superior judiciary exerting pressure on the Federal and Provincial Governments

on an issue on which the latter had been dragging their feet.

Balochistan achieved the distinction

on January 28, 2015 of being the first province with fully functional Local

Governments.⁶ It was a measure of the Balochistan Government’s commitment

to the principal of devolution of power that despite political maneuverings,

security threats, and legal challenges, it managed to hold elections to the

third-tier of the Government.

Additionally, the country also

witnessed elections to the 42 Cantonment Boards on April 25, 2015 after a disappointing

span of 17 years.⁷The results saw the PML-N emerge victorious followed by Independent

candidates, and the PTI. As per the Local Government Ordinance, 2002, each Board

comprises equal number of elected and appointed members, with the latter being

appointed by the Military’s Station Commander for the Cantonment. The

Chair of the Board also possesses veto powers. Many believed that this provision

is contrary to the emerging dynamics of Cantonments, which are no longer out-of-city

and exclusively Army centres with a sprawling urban, civilian population. However,

considering that Cantonments are still primarily the conserve of Military installations,

PILDAT believes there is a strong justification for this arrangement.

Local Government polls were also

held in Khyber Pakhtunkhwa on May 30, 2015. Although significant irregularities

and acts of mismanagement were observed in the elections, the blame of which

party lies with the Provincial Government and mostly with the ECP, the bottom-line

remains that Khyber Pakhtunkhwa now has an elected Local Government setup, whereas

elections are still to be held in Sindh and Punjab on September 20, 2015. Although

the Local Governments’ institution is laudable, PILDAT believes that the

laws governing them need to be improved as these limit the scope of the

Local Governments, are deferential to the Provincial Governments, and do not devolve

comprehensive financial, political and administrative powers to the Local Government

setup. Specifically, arbitrary powers granted to the Provincial Governments

such as that of discretionary removal of elected Local Government representatives,

and arbitrary powers of inspection, are of concern. ⁸

Moves

for Greater oversight: Pakistan Senate amends its Rules of Procedure and Conduct

of Business

As of May 06, 2015, the emblem of the Pakistan

Senate has been changed to include the words ‘House of the Federation’.

PILDAT believes that all Legislatures, including the Provincial ones, are ‘Houses

of the Federation’, and it is somewhat strange for the Pakistan Senate

to reserve the title for itself⁹ The addition was unnecessary but

if at all something was to be added, it would have been more apt to call it

‘House of the Federating Units’

In a welcome development, the Pakistan Senate

made certain amendments and additions to its Rules of Procedure on April 15,

2015, that underscored the Parliament rightfully asserting itself and taking

more seriously its duties of oversight.

Apart from the much needed additions

to augment the Senate’s Question Hour, and the constitution of the House

by itself as a Committee of the whole, perhaps the most significant addition

was one requiring the Ministers to appear before the House and making reports

on ‘all matters referred by the House and recommendations made by

[the Senate’s] Committees.’ ¹⁰

PILDAT believes that this requirement

of regular answers from the Executive on the recommendations and reports made

by Senate and its Committees was much needed. However, in addition, the leadership

of the House might also consider further amending the Rules of Procedure to

include the presentation of an ‘Action Taken Report’

to the Senate by the concerned Ministry, after every month, or whatever time

is considered suitable, containing the Ministry’s compliance, or an explanation

for any delay faced in it, by any matter referred to it by the House. The proposed

Report should address the concerns of the members on a point-by-point basis,

and its status may also be included in the monthly consolidated list of matters

issued by the House and recommendations made by the Committees under the recently

added Rule 265A (3).

In addition, PILDAT also commends

the Public Petition Portal recently launched by the Pakistan Senate.¹¹ In the

past, the Human Rights Cell of the Supreme Court had started the initiative,

which is a somewhat unconventional role for the Judiciary. It is much more appropriate

for the Parliament to examine public petitions, in line with its duty of representing

the people and their concerns. PILDAT hopes that the infrastructure surrounding

the public petition system, including the human resource, equipment, and a budget,

is adequately provided for in order for it to be efficient and effective. In

case the petitions are not responded to within a specific time, or are not given

the adequate attention, it will lead to further disillusionment of the people

with the Parliament.

Stay

Order on Lahore’s Signal Free Corridor: A significant judgment for Local

Governments?

Work is yet to start again on Lahore’s

Signal Free Corridor by the LDA following the Supreme Court’s suspension

of the Lahore High Court’s verdict ¹²

On May 14, 2015, a three-members bench of the

Supreme Court suspended the Lahore High Court’s decision of stopping the

Lahore Development Authority (LDA) from carrying out any projects till the Local

Government elections in Punjab. However, PILDAT believes that the detailed judgment

of the Lahore High Court (LHC) is worthy of a nuanced consideration.

Although the LHC’s criticism

of the Environmental Protection Agency’s (EPA) inability to discharge

its duties as an independent agency, and the appointment of a civil-servant

as its head at the discretion of the Provincial Government is valuable, it is

the Court’s expansion on the concept Local Government that is critically

relevant. Taking root from a comparative analysis of the Local Government Systems

of South Africa, India and Pakistan, the LHC asserted that the Local Government

System, while drawing its design and recognition from the Constitution, draws

its powers from the Provincial Assembly. “However, the executive authority

of the Provincial Government in the absence of any legislation could not extend

to the affairs of the Local Government which operated under a legislative structure.¹³

On this point, it seems that the Court has departed from its designated duties,

choosing to perhaps prescribe legislation on the concept of Local Government.

Regardless, the LHC’s judgment

must be commended for asserting the elected Local Governments’ authority

vis-à-vis institutions such as the Lahore Development Authority (LDA).

The Provincial Government of Punjab should ensure that effective powers are

devolved to the Local Government setup, which should not in anyway be usurped

by authorities such as the LDA.

Negative Developments Affecting

the Quality of Democracy in Pakistan: June 01, 2014-May 31, 2015

Sit-ins

by the PTI and the PAT

Dark clouds can be seen hovering as the PTI and the PAT protestors remain encamped outside the Parliament¹⁴

The Pakistan Tehreek-e-Insaf (PTI) and the Pakistan

Awami Tehreek (PAT) protests against the incumbent Government of the Pakistan

Muslim League-Nawaz (PML-N)¹⁵ amounted to a major challenge and a

milestone in the democratic journey trough 2014-15. Although the protests by

the PAT revolved around a much larger objective of bringing about a revolution

in the country, both it and the PTI converged on the demand for resignation

of the Prime Minister against the allegations of what both parties termed as

massive and systematic rigging in General Election 2013.¹⁶”

Formation

of the Military Courts: Undermining the Civilian Judicial System

Picture showing the Army Public School, Peshawar in the

aftermath of the attack by the militants on December 16, 2014; The development

catalyzed the formation of the Military Courts, with both the Military and

certain sections of the civilian political leadership lending support to it³⁸

Considered to be the creation of a parallel

system of justice, the establishment of Military Courts signified a negative

development not only for Pakistan’s civilian judicial system, but also

its nascent democracy. Although their legality is sub-judice, PILDAT

believes their formation blurs the line between the Judiciary and the Executive,

distorting the trichotomy of powers enshrined in Constitution. It also signifies

the limited level of trust the Government reposes in the civilian judicial

system, even if only vis-à-vis terror-related cases. If this is indeed

the case, it means that provision of accessible justice, a cornerstone of

a functioning democracy, remains largely problematic in Pakistan.

In this context, the remarks made by Prime

Minister Nawaz Sharif, and two Supreme Court judges during January 2015 are

of relevance. Regarding the formation of Military Courts, the Prime Minister

stated that ‘the independence of the Judiciary was essential but

equally important is the performance of the Judiciary. The pendency

of numerous cases has contributed towards law and order issues’.

Justice Jawwad S. Khawaja and Justice Asif Saeed Khosa, however, in an

apparent rejoinder, listed inefficient investigations and weak prosecutions

as the primary reasons for delays and rising backlog of cases pending in courts.³⁹

This debate lies at the heart of the Military

Courts’ formation. Although there has been persistent criticism of the

country’s judiciary for low number of convictions in terrorism related

cases, the investigation and prosecution branches of the Government must be

held responsible as well, as no person can be punished without evidence, no

matter what the public perception is.

Therefore, the question that needs to be answered

is: How is the Government planning to improve the civilian justice system

in two years’ time when the 21st Constitutional Amendment will terminate?

In light of the fact that little or no recommendations have been floated in

this regard, it is feared that we may see the Government reverting back to

the Parliament in two years’ time, seeking an extension of Military

Courts.

Lastly, in the context of democracy, significant

apprehensions regarding a lack of transparency and doubts about the Military

Courts’ ability to safeguard provision of basic rights, such as following

the due process of law, remain. These fears were further compounded by the

promulgation of the Pakistan Army (Amendment) Ordinance, 2015 which PILDAT

duly noted in its Civil-Military Relations Monitor for April 2015⁴⁰. Perhaps

for the same reason, a 17-member bench of the Supreme Court issued a stay

order on the first batch of executions ordered by the Military Courts on April

16, 2015.

Senate

Elections: An Indictment of Pakistan’s Political Parties?

An All Parties Conference (APC) was held on March 10, 2015,

during which the decisions for the appointment of the Senate leadership were

made⁴¹

With the election of four Senators from FATA

on March 20, 2015,⁴² Pakistan wrapped up its Senate elections for 2015. Ill-timed

and ill-advised politicking made the process somewhat controversial for many

observers. What was supposed to be a regular ritual for the country’s

democracy, instead exhibited insecurity of the political parties vis-à-vis

their political capital, weak internal democracy and nation-wide organization.

As the May 05, 2015 deadline to hold election

of half the Senators drew close, allegations of horse-trading, a regular feature

of the Senate elections, reached a deafening pitch. The final result, however,

was more or less in consonance with the party positions in each Legislature.

The few instances of aberrations, not necessarily the result of horse-trading

but of genuine liking for a candidate not from the voter’s party, therefore

did not necessitate the charged political discussion regarding amending the

Constitution. This was aimed at changing Article 59 (1), 63 A, and 226 to

introduce open balloting in Senate elections, along with the disqualification

of the legislator in case he or she did not abide by the party guidelines

on voting. PILDAT believes that the problem was not so widespread as to introduce

a Constitutional Amendment, especially one drafted in such haste without any

referral to the Parliamentary Committee on Electoral Reforms. If passed, it

would have added to the suffocation observed amidst strict centralization

within political parties, curtailing a democratic right of dissent.

The second disappointment was the Ordinance

issued by the President of Pakistan just a few hours before the election on

March 05, 2015, which gave each Fata MNA only one vote for the Senate election,

compared to as many votes as the number of vacant seats previously⁴³. Although

Article 59 (1)(b) of the Constitution leaves the manner of election of FATA

Senators to the President who may prescribe it through an order, the ill-timed

decree was a cause of confusion for the ECP, and was rightfully withdrawn

amidst protests by the FATA legislators. The justification given again was

the fears of vote selling not only because the FATA MNAs constitute the smallest

Electoral College but also because most of them are independent and therefore

do not subscribe to party discipline.⁴⁴

PILDAT believes that instead of introducing

such ill-timed amendments to the election procedure, strengthening political

parties in the tribal areas will improve the quality of Senate elections.

Experience has shown that organised and democratic political parties are a

much better guarantee against malpractices. Considering that 6 of the total

11 (55%) FATA MNAs are independent (i.e. not affiliated to any political party),

political parties have not been able to make any significant inroads in the

region, perhaps contributing to its ostensible political alienation from the

rest of the federating units.

Sidelining

the Parliament: Increasing Trend of the All Parties Conferences (APCs)

Picture showing an All Parties Conference held on National

Security, chaired by the Prime Minister; the COAS, Gen. Raheel Sharif, is

also in attendance along with leaders of various political parties on December

24, 2014⁴⁵

All Parties Conferences to evolve consensus on issues

of national interest became a recurrent feature for the current Government’s

second year in power. From June 01, 2014-May 31, 2015, the following APCs

were held:

Table1: APCs held during the 2nd Year

of the current Government

No.

Date

Issue

Discussed

December

17, 2014

draft an action plan to counter the increasing tide of terrorism in

Pakistan, especially after the Peshawar Tragedy on December 16, 2014

December

24, 2014

forge consensus on the National Action Plan (NAP) formed to counter

terrorism in Pakistan

January

02, 2015

Approval

of the National Action Plan (NAP) including the formation of Military

Courts to counter the growing tide of terrorism

May

13, 2015

evolve consensus on the multi-billion dollar Pakistan-China Economic

Corridor

May

28, 2015

allay the concerns of various political parties regarding Pakistan-China

Economic Corridor

It is inexplicable and to the detriment of the institution

of the Parliament that in the presence of Parliament, All Parties Conferences

are organized to achieve so-called political consensus on issues. Parliament

represents public’s elected representatives belonging to all key parties

who have been empowered to take policy decisions, develop policy guidelines

and develop consensus on behalf of the citizens.

PILDAT has always commended the Government’s utilization

of the Parliament to announce decisions such as the Treason Trial against

Gen. (Retd.) Pervez Musharraf, the start of Operation Zarb-e-Azb, etc. However,

in the same vein, it is regrettable that majority of the Parliamentarians

were unable to give input on the National Action Plan, and the Pakistan-China

Economic Corridor, because of the APCs convened. This not only contravenes

an effective and thorough debate that is usually to take place in the Parliament,

but also sidelines a sovereign institution that is Constitutionally designated

for such matters.

Additionally, following the recently-concluded Khyber

Pakhtunkhwa Local Government elections, the Jamaat-e-Islami (JI) has called

for an APC over alleged rigging in the polls⁴⁶. This shows that not only are

the Legislatures being sidelined by this new phenomenon, but also the Constitutionally

prescribed mechanisms for electoral dispute resolution, i.e. the Election

Tribunals.

Inordinate

Delay in Appointment of a full-time Chief Election Commissioner (CEC)

Picture showing the Chief Justice Nasir-ul-Mulk administering

oath to the Chief Election Commissioner Justice (Retd.) Sardar Raza Khan⁴⁷

On December 04, 2014, after an inordinate delay

of 16 months, with members of the Supreme Court filling in, the country finally

saw the appointment of Justice (Retd.) Sardar Raza Khan as the new Chief Election

Commissioner (CEC). The previous full-time CEC, Justice (Retd.) Fakhruddin

G. Ebrahim had resigned on July 31, 2013.

Apart from the Local Government elections,

this development signifies another instance of the superior Judiciary exerting

pressure on the Government (in this case for a timely appointment of the head

of a Constitutionally mandated body), with the latter dragging its feet. Disappointingly,

the Apex Court gave the Government a total of four deadlines in 2014 (October

28, November 13, November 25 and December 05) for the appointment⁴⁸. Considering

the controversy surrounding the Election Commission of Pakistan vis-à-vis

General Election 2013, due and lengthy consideration given to the appointment

is understandable. However, a drawn-out lapse of 16-months is not

References:

1. Picture courtesy Daily Jang

2. For details, please see Joint Parliamentary session

today to display unity, Daily Times, September 02, 2014, as accessed on

May 10, 2015 at: http://www.dailytimes.com.pk/national/02-Sep-2014/joint-parliamentary-session-today-to-display-unity

3. The attendance record can be accessed at the Provincial

Assembly of the Punjab website at: http://www.pap.gov.pk/ext/attendance.php

4. PILDAT, which has been advocating for greater transparency

in the Parliament for years, has repeatedly asked the National Assembly

of Pakistan to provide the attendance records of individual members publicly,

finally invoking the Freedom of Information Ordinance, 2002, upon the

Secretariat’s refusal to provide attendance records. PILDAT appealed to

the Wafaqi Mohtasib (Federal Ombudsman), which upheld PILDAT’s point of

view to provide the requested attendance records. The National Assembly

chose to file an appeal against the verdict and the case is pending with

the President of Pakistan for the past many months. PILDAT hopes that

the Honourable President would decide in favour of greater transparency,

especially in light of the Provincial Assembly of the Punjab’s decision

to publicly provide attendance record of its members.

For details, please see a public statement issued by PILDAT in this regard,

which can be accessed at: https://www.pildat.org/eventsdel.asp?detid=748

5. Picture courtesy daily Dawn

6. For details, please see Balochistan completes the

final phase of Local Government elections, Daily Times, January 29, 2015,

as accessed on May 10, 2015 at: http://www.dailytimes.com.pk/national/29-Jan-2015/balochistan-completes-final-phase-of-local-govt-elections

7. For details, please see PML-N leads Cantonment Board

elections: unofficial results, The Express Tribune, April 25, 2015, as

accessed on May 10, 2015 at: http://tribune.com.pk/story/875798/pml-n-takes-lead-in-cantonment-board-elections-unofficial-results

8. The publication can be accessed at:

9. For details, please see Senate to be called the ‘House

of the Federation’, Dawn, May 07, 2015, as accessed on June 08,

2015 at: http://www.dawn.com/news/1180418

10. For exact text of the changes made, please refer

to the Orders of the Day for April 16, 2015, issued by the Senate Secretariat,

which can be accessed at: http://senate.gov.pk/uploads/documents/1429159110_528.htm

11. The Public Petition Portal may be accessed at: http://www.asianparliament.org.pk/Petitions/index.php

12. Picture courtesy daily Dawn

13. For details, please see Lahore High Court releases

detailed judgment of Signal Free Corridor, Pakistan Today, May 21, 2015,

as accessed on June 08, 2015 at: http://www.pakistantoday.com.pk/2015/05/21/city/lahore/lhc-releases-detailed-judgement-of-signal-free-corridor

14. Picture courtesy the daily Dawn

15. For details, please see PTI, PAT protests: Will there

be a people’s Parliament? Dawn, August 19, 2014, as accessed on

May 10, 2015 at: http://www.dawn.com/news/1126316

16. For details, please see Rigging in polls: Ex-ECP

officials hand ‘evidence’ to Imran, the Express Tribune, August

10, 2014, as accessed on June 04, 2015 at: http://tribune.com.pk/story/746696/rigging-in-polls-ex-ecp-official-hands-evidence-to-imran

17. For details, please see PTI, PML-N sign agreement

to form poll inquiry commission, Dawn, April 02, 2015, as accessed on

June 03, 2015 at: http://www.dawn.com/news/1173262

18. Picture courtesy of the daily Dawn

19. Perhaps the most significant accusation in this regard

was when Mr. Javed Hashmi left the PTI at the height of the protests,

citing that the protestors were following a ‘scripted plan’,

hinting at a covert form of a Military takeover. For details, please see

Collusion claim: Hashmi sees current tussle as a scripted affair, the

Express Tribune, September 02, 2014, as accessed on May 10, 2015 at: http://tribune.com.pk/story/756812/collusion-claim-hashmi-sees-current-tussle-as-a-scripted-affair

20. For details, please see the Press Release issued

by the ISPR on August 19, 2014, as accessed on May 10, 2015 at: https://www.ispr.gov.pk/front/main.asp?o=t-press_release&id=2634

21. The publication can be accessed at: https://www.pildat.org/publications/publication/CMR/MonitorOnCivil-MilitaryRelationsinPakistan_Sep012014_Sep302014.pdf

22. For details, please see SC dismisses all petitions

seeking PM Nawaz’s disqualification, Dawn, December 09, 2014, as

accessed on May 10, 2015 at: http://www.dawn.com/news/1149778

23. The Press Release can be accessed at: https://www.ispr.gov.pk/front/main.asp?o=t-press_release&id=2634

24. Picture courtesy Pakistan Today

25. For details, please see 26 cases pending with Election

Tribunals, Dawn, June 21, 2015, as accessed on June 24, 2015 at: http://www.dawn.com/news/1189461

26. For details, please see Election tribunals to get

another extension for pending cases, Dunya News, May 07, 2015, as accessed

on May 10, 2015 at: http://www.breakingnewspak.com/ecp-extends-election-tribunals-tenure-till-june-30

27. For details, please see Election Tribunals disposed

off 198 petitions in 120 days, Associated Press of Pakistan, February

27, 2015, as accessed on May 10, 2015 at: http://www.app.com.pk/en_/index.php?option=com_content&task=view&id=268681&Itemid=2

28. For details, please see Analysis: Justice delayed

for PTI, Dawn, May 05, 2015, as accessed on May 10, 2015 at: http://www.dawn.com/news/1180016

29. For details, please see Election Tribunals disposed

off 198 petitions in 120 days, Associated Press of Pakistan, February

27, 2015, as accessed on May 10, 2015 at: http://www.app.com.pk/en_/index.php?option=com_content&task=view&id=268681&Itemid=2

30. Picture courtesy the Daily Times

31. This friction revolved around:

The Treason Trial against Gen. (Retd.) Pervez Musharraf
The Prime Minister’s decision to promote bilateral trade with
India
FIR registered against Army officials at the behest of Federal Minister
for Defence, Khawaja Muhammad Asif, MNA, in relation to the Missing

Persons case.
The assassination attempt on Mr. Hamid Mir and the divergent responses
by the civil-military leadership to it
The Government’s and major political parties’ initial
decision to pursue talks with the Taliban
Allegations leveled against the Military leadership for allegedly
supporting the agitating PTI and the PAT against the Government
Irresponsible statements by some of the Federal Ministers which were
perceived to be critical of the Military