For the past couple of months, the ambivalent debate on the effects of the eighteenth amendment has grasped the attention of the media, fueled in part by allegations from the Pakistan People’s Party (PPP) cadre that the amendment is in danger of repeal and the diatribes of members of the treasury benches against the damage caused to the federation by the eighteenth amendment. Whatever the merits of the debate may be, it can reasonably be concluded that the repeal of parts of the eighteenth amendment needs serious deliberations and consultations among the various organs of the Pakistani polity.
This can take time, and it should, bearing in mind its contentious nature and the widespread effects that it may entail. There is, however, a less controversial amendment of the Constitution that can easily be pushed through Parliament and would result in Imran fulfilling a campaign promise. This is Imran’s promise of a more democratic Senate, elected by popular vote. If it materialises, it would be the government’s first sponsored constitutional bill but will help the government in not only uniting Parliament and thus making it work, but would also be a historic leap towards democratic governance.
The Senate of Pakistan is established under Article 59 of the Constitution. Historically, the purpose behind the establishment of the Senate was to provide equal representation to all federating units so as to promote national cohesion and harmony. This was deemed necessary since the lower chamber the National Assembly’s representation was based on population. Pakistan had in fact by adopting this system replicated the American federal parliamentary system, which was the result of a great compromise between the large and small states. The idea behind such a bi-cameral system is simple, since in the lower house representation is based on population, it would mean that provinces with larger populations would not only have more power in passing legislation but could also trample on the rights of the provinces with smaller populations. In order to address this threat, the bi-cameral system was created, which gave both the larger and smaller provinces even influence in the legislature. Unless an idea was supported by both the majority of the people of the country and the majority of federating units in the country, it could not become law. This was even more important for Pakistan after the fall of Dhaka, since Punjab had over half of the country’s population and could get its way around every time, even if the rest of the provinces objected, unless of course there was a Senate with equal representation from each province.
Circumstances change and a polity that refuses to change with it and remains static is left behind, especially in a globalised world
The Senate however, has received scathing criticism, not only because it is entirely undemocratic in its election process, but also by the current PM over allegations of horse trading. Each of the four provincial assemblies elects 23 members from their respective provinces, whereas four members are elected by the National Assembly from the Federal Capital and eight members used to be elected from the Federal Administered Tribal Areas (FATA) before its merger with Khyber Pakhtunkhwa. The term of elected Senators is six years, with half of its members retiring every three years. It has often been alleged that a candidate can buy their way through to the upper chamber and that political parties and politicians often engage in shrewd negotiations over the Senate elections. The current PM demanded that elections to the Senate should be held directly, and even promised that he would introduce a direct election system after coming to power.
The current system of elections to the Senate sounds an awful lot like the system that was introduced first in the United States by the constitution of 1787. The Americans experienced similar problems with their Senate. Nine bribery cases concerning the election of Senators were brought before the Senate between 1866 and 1906, there were widespread calls for direct elections, but were fiercely spurned. The state of Oregon then took the lead and held the first direct elections for its Senators in 1907, and by 1912 as many as 29 states elected senators directly. The new directly elected Senators soon started supporting direct elections for Senators and it took just one year for their coup to succeed. The seventeenth amendment to the American constitution, ratified in 1913, made the Senate more democratic by providing for direct elections nationwide.
Our Constitution was drafted six decades after the Americans provided for direct elections, yet we adopted a system of indirect elections. Circumstances change and a polity that refuses to change with it and remains static is left behind, especially in a globalised world. It is high time now that direct election for the Senate were ensured, bidding an end to the problems caused by indirect elections. It would make Pakistan a more democratic entity. There are no good reasons for keeping the Senate indirectly elected. The PM promised it, and there is a huge probability of bi-partisan support for such a constitutional amendment. It would be swift and efficient and it should be the government’s first constitutional amendment.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law
Published in Daily Times, February 22nd 2019.