The preamble to the constitution and the Objectives Resolution (1949) clearly mandate that state shall exercise its powers and authority through the chosen representatives of the people.
The duty to hold free and fair elections under Article 218 of the constitution lies with the Election Commission of Pakistan (ECP) and all authorities including armed forces have been bound down by the constitution to assist the commission in the discharge of its duties.
Neither the original constitution of 1973 nor two earlier constitutions of 1956 and 1962 provided care-taker government(s). This constitutional aberration that negates the grund norm of the constitution viz. ‘that state shall exercise its powers and authority through chosen representatives’ was added to provide for yet another method and a mean to manipulate elections and their results.
This farce was created to bring in people to power with non-democratic credentials to run the governments in the provinces and of the federation at most critical moments in democracy i.e. the elections. These care-taker governments are against the basic structure of the constitution and thus unconstitutional.
In the Westminster classical parliamentary system both in case of dissolution or after the completion of the term of the people’s house (five years term) the sitting government continues in office during the elections and in case the ruling party loses elections then the leader of the party that has secured majority of seats in the peoples’ house is invited to form the government. Care-taker governments are set up in times national of emergencies and only if the constitution provides for it.
The constitution of Pakistan does not envisage delay in the elections of assemblies after dissolution or completion of their terms as provided in the constitution in any circumstance and under Article 224 even the period for holding of elections has been provided. This is for the simple reason that the basic constitutional norm of our constitution is that state power and authority can be exercised only by the chosen representatives. Any other interpretation including a reliance on Article 254 for extension in the time for holding of elections is a fraud upon the constitution.
Moreover, the term of these unelected governments cannot go beyond 90 days as the constitution mandates to hold elections within the period given in the constitution. The war-ravaged Britain held elections in 1946 and voted out their war hero Winston Churchill. Pakistan lacks democratic credentials and its history is full of instances of manipulations and delays in elections.
Now with this looming constitutional crisis when the federal government and ECP are putting unworthy gloss of fallacious interpretation on clear provisions of the constitution to avoid elections the democratic process is under a serious threat from the democratic forces.
The most absurd assertion is that elections cannot be held unless there are caretaker governments both in province and the federation. It may be recalled that first free and free election on the basis of adult franchise were held after 23 years of its creation of Pakistan in 1970 and even its results were not accepted.
The majority party was forced out of power. A leader or party who are unwilling to face people in the arena of free and fair elections to come to power have no right to impose themselves upon people through manipulation.
The history of care-taker governments begins in Pakistan from 1988. The dismissal of Muhammad Khan Junejo’s government on 29 May 1988 led to a care-taker federal government under General Zia. No care-taker prime minster was appointed. In the provinces care-taker governments were set up under the Governors.
After the dismissal of Benazir Bhutto’s federal government in August 1990 Ghulam Mustafa Jatoi was appointed as the care-taker prime minister in the absence of and expressive constitutional provision.
In 1993 after the dissolution of the National Assembly and dismissal of Nawaz Sharif’s government a care-take government was sworn in and Balkh Sher Mazari was appointed as the care-taker prime minister. After the resignation of Nawaz Sharif in 1993 soon after his government’s restoration Moeen Qureshi was appointed as the care-taker prime minister.
After the dismissal of Benazir Bhutto’s government in 1996, Malik Meraj Khalid assumed the office of a care-taker prime minister. When after the constitution was restored in 2002-2003, first through the Legal Framework Order (2002) provisions were made for the care-taker government by adding clause 224 (7). Under this new system Muhammadmian Soomro was appointed as caretaker prime minster in 2007.
A new clause, Article 224 (1) A, was added to the constitution by the 18th amendment whereunder in case of dissolution or completion of the term of the national assembly a care-taker prime minster and cabinet were to be selected by the President.
The selection of the prime minister in both cases was to be made in consultation with the out-going prime minster and the leader of the opposition, which on the face of it is against the principles of responsible government and the President may not be bound by the consultation process as it is not an advice. Moreover, no advice could be tendered by them as they lacked the mandate of the people.
Under this provision Mir Hazar Khan Khoso was appointed as care-taker prime minister in 2013 and Nasir ul Mulk in 2018.
But the most critical and grave constitutional flaw arose when the power to select a prime minister was given to the ECP under the 20th amendment in the form Article 224 A. This provision is absolutely against the principles of democracy, parliamentary form of government, rule of law and also causes a conflict of interest inasmuch as the ECP is entrusted by the constitution to hold free and fair elections for which it is accountable to courts in case it fails to discharge its duties.
With this power in hand to select the care-taker prime minister or the chief minister the ECP gets a complete control over the whole democratic process by installing a care-taker government which owes its existence to the commission. Moreover, in case of any grievance or illegality of a care-taker government, the ECP becomes judge of its cause and may not do justice to the aggrieved party. This engrafted provision is pinching nerves of the system in present circumstances.
The justification for care-taker government(s) in Pakistan are the events of 1977 when elections were allegedly rigged by the sitting government which provided a cause for unrest and extra constitutional acts of July 1977. Out-going governments are not allowed to continue in office in Pakistan unlike other parliamentary democracies lest they manipulate elections in their favour.
The point is that if they were entrusted with the government for five years and when it is the basic duty of the ECP to hold free and fair election and all executive authorities are constitutionally obligated to assist the commission in the discharge its duties then there is no room left for any manipulation. Moreover, in presence of a strong and vibrant judiciary and power of judicial review the fear of manipulation by the outgoing governments is more imaginary than real.
The seeming purpose of a care-taker government is to provide level playing field but history tells us that despite installation of care-taker government(s) elections and their results continue to be disputed and doors for manipulation are wide open. The problem lies somewhere else. These care-taker governments are only a farce.
Copyright Business Recorder, 2023