Election Act amendment: Unconstitutional and undemocratic

This amendment diminishes any difference between a caretaker government and a democratically elected one.

Pakistan remains one of the few democracies in the world that opts for the swearing-in of a caretaker government on the dissolution or cessation of the outgoing national/provincial assembly. Historically, these caretaker governments entailed executing the routine functions of the government, ensuring that the country does not come to a standstill during the interim period between the closure of the Parliament till the formation of the new one. However, with the legislation recently passed by the incumbent government, the power vested in the caretaker setup goes beyond what can be deemed in alignment with the letter and spirit of the Constitution of the Islamic Republic of Pakistan.

Amongst other amendments to the Election Act 2017, the amendment to Section 230, under the significant revamp of the caretaker government role it imposes, can be considered paramount. Section 230, in its subsections (1) and (2), provides for set boundaries to which a caretaker government in its operations shall delimit itself. Nevertheless, the recently passed amendment to the same provides for a pathway which, when embarked upon, exempts the caretaker government from any restrictions on its functionality. In that, it states:

“Provided that sub-sections (1) and (2) shall not apply where the caretaker government has to take actions or decisions regarding existing bilateral or multilateral agreements or the projects already initiated under the Public Private Partnership Authority Act, 2017 (VIII of 2017), the Inter-Governmental Commercial Transactions Act, 2022 (XXX of 2022) and the Privatization Commission Ordinance, 2000 (LII of 2000).”

A perusal of the amendment penned down above may narrate the point of view of the incumbent government, deeming that the amendment ensures the caretaker government’s decision-making remains steadfast to the recently signed IMF deal. Although, in substance, it opens a realm of powers for the caretaker government, which can be regarded as unnecessary and against the very fundamentals of a vibrant democratic system.

One crucial aspect which this scenario sheds light on is that under the umbrella of this amendment, a caretaker government would at will spare itself from the restrictions imposed by subsection (2)(g) of Section 230. It ascertains that a caretaker government shall not “attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections”. Thus, by its very nature, the amendment allows the caretaker government to retract from the very purpose it comes into existence for: to assist the Election Commission in holding elections in accordance with the law.

Arguably, this amendment diminishes any difference between a caretaker government and an elected one. Vital to remind the readers here is the fact that an elected government is mandated by the public to perform its tasks to achieve welfare for the public. A caretaker government, on the other hand, has no such mandate and thus refrains from making any major policy decisions that may have an impact on the future of the country.

The powers vested in the caretaker government under the new amendment are also contradictory to several Supreme Court precedents (2013 SCMR 1205, PLD 1992 SC 646, PLD 1989 SC 166), which have ruled the functions going beyond what can be perceived to be the managing of the day-to-day affairs to be void. These decisions have laid down a principle for all the caretaker governments to follow, which necessitates that major policy decisions should remain at the behest of newly-elected governments and that “neutrality, impartiality, detachment and devotion to duty to carry on day-to-day affairs of the state without keeping in view one's own interest or of one's party are the sine qua non of a caretaker cabinet”.

Furthermore, Article 2A of the Constitution envisages that the state shall exercise its powers and authority through the chosen representatives of the people. These powers are bestowed upon them to ensure good governance, law down policies, and work for the welfare of the state. Along with these powers comes a robust system of accountability for the same by the National Assembly. It is imperative to state here that the caretaker government lacks both of these fundamentals, nor is it chosen for and by the people of Pakistan as they are not elected, but also its formation comes at a time when there is no National Assembly. Hence, all avenues of accountability are absent. In the non-existence of such accountability mechanisms, the recent amendment made essentially allows for the caretaker to attempt to continue to remain in office for a longer period than which is prescribed by the Constitution in its Article 224A, or to take such decisions which might pose as hurdles for the future elected governments to adhere to and implement their manifestos.

The system of installing a caretaker government is outdated. Perhaps Pakistan can follow in the footsteps of some of the flourishing democracies in the world on how to cope with the vacuum created by an outgoing government. With the many commonalities between the justice system, Pakistan may adhere to the working of the UK, where during an election campaign, the government retains its responsibility to govern, and the ministers remain in charge. However, the decisions on matters of policy and other issues, such as large and/or contentious procurement contracts, on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election. A similar model is adopted by Australia as well.

In conclusion, I would quote the words of Thomas Paine, an English-born American Founding Father:

“A constitution is not the act of a government but of a people constituting a government.”

With this, I hope the very flag bearers of democracy in our country adhere to the spirit of the Constitution and let the elected representatives of the masses rather than a caretaker government carry out functions of vast importance.