Huzaima Bukhari and Dr Ikramul Haq
Uninterrupted decade of democracy [2008 to 2018], unprecedented in our political history entailing smooth transfer of power to elected representatives, according to the Constitution, is an occasion for national jubilation and celebration. The elections for another five-year term [2018-2023] are to be held on July 25, 2018, which is a great omen for continuance and consolidation of democratic rule. It is hoped that in the coming term, the legislators will concentrate on passing laws like universal pension and income support to make Pakistan a true welfare state. They will avoid the mistake of passing self-serving laws as done by their predecessors during the last two terms [2008-2013 and 2013-2018].
It needs to be emphasised that democracy and inequality cannot co-exist. Even during civilian rules, there is a dearth of efforts to end elitism. The state is still captive in the hands of militro-judicial-civil complex. They enjoy unprecedented tax-free perks, perquisites and benefits. Power and wealth are concentrated in the hands of elites. The legislators sitting in the Senate, National Assembly or provincial assemblies have been passing laws extorting exorbitant taxes from people to fund the luxuries of elites, their own salaries and perquisites that have been increased manifold, but the poor workers and tillers are suffering from hunger, malnutrition and diseases. Democracy is not meant for extravagances of elites and widening the rich-poor divide. The last two governments failed to tax the rich—rather gave them unprecedented exemptions and amnesties. Resources generated were wasted on excessive non-development expenses, including meeting collosal losses of Public Sector Enterprises [PSEs]. The governments, federal and provincial alike, kept borrowing recklessly and accumulating loans/liabilities beyond their capacities to pay!
The latest example of enacting self-serving laws surfaced when the National Assembly, through the Finance Act, 2018 further enhanced perks and privileges of the sitting and former parliamentarians and their spouses by amending Members of Parliament (Salaries and Allowances) Act 1974 and Chairman and the Speaker (Salaries, Allowances and Privileges) Act 1975—salaries and allowances of the members of parliament, Senate chairman and speaker National Assembly are governed by these two laws. Both these laws were included in the Money Bill at a belated stage—just before the adoption of Finance Bill, 2018. These were made part of Finance Bill, 2018 in utter violation of dictum laid down by the Supreme Court of Pakistan in Workers Welfare Funds m/o Human Resources Development, Islamabad through Secretary and others v East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. and others [(2016) 114 TAX 385 (S.C. Pak.)], Mir Muhammad Idris v FOP PLD 2011 SC 213 and Sindh High Court Bar v FOP PLD 2009 SC 789. These amendments, if challenged under Article 199 of the Constitution of Islamic Republic of Pakistan [“the Constitution”], would be declared null and void by any High Court as the above judgements of Supreme Court are binding on them under Article 189 of the Constitution.
The amendments made by National Assembly on May 16, 2018 in the garb of the Finance Act, 2018 enhancing perks/allowances/benefits were never presented during budget debate, in the Senate Standing Committee on Finance or in the National Assembly. Amendment made in the Members of Parliament Act of 1974 extends the free air travel by the parliamentarians to all the Pakistani airlines. Earlier, this was limited to Pakistan International Airlines (PIA). Each member of the parliament is entitled to avail up to Rs. 300,000 worth of free air travel within Pakistan. By another amendment, the facility of travelling by business class for attending the sessions stands increased from 20 trips to 25 trips from and to Islamabad from anywhere in the country. This is in addition to free entitlement of air travel of Rs 300,000.
The amendments made in relevant laws have also enhanced the medical facilities of the sitting and the former parliamentarians and their spouses and dependent children, bringing them at par with bureaucrats serving the governments in Grade-22. The sitting members [342 members of National Assembly and 104 of Senate] in addition to hundreds of former parliamentarians and their spouses would reap the benefit. It will adversely affect national exchequer—already under great pressure. The federal government after making allocations for debt servicing and defence, borrows for current expenses. These huge and costly borrowed funds take away over 65% of federal revenue collection.
Shockingly, the sitting and ex-parliamentarians and their spouses have been allowed “the gratis official (blue) passport”, entitling them to VVIP treatment anywhere in Pakistan and in the world at the expense of taxpayers!! What can be a more shameful act than this blatant violation of funds belonging to the masses? The poor workers have not been given even legal cover of minimum wages of Rs 30,000 per month and the elite club is enjoying unprecedented benefits at the expense of taxpayers’ money.
In addition to their monthly salaries and other benefits, the monthly honorarium of the chairmen of standing committees is increased from Rs 12,700 to Rs 25,000 per month. They will also be entitled to services of a private secretary in basic pay scale 17, stenographer in basic pay scale 15, driver in basic pay scale 4 and one attendant (Naib Qasid) in basic pay scale-1, telephone facility in the office to a limit of Rs 10,000 per month and office accommodation with necessary furniture and equipment. After amendments in laws, the acting speakers or deputy speakers will be eligible for all the perks and privileges that are currently available to the Speaker.
It should be recalled that on March 7, 2018 the Cabinet increased daily allowance of all the parliamentarians by 71%, bringing it at par with that enjoyed by officers in grade 22 since July 3, 2017. Accordingly, the ordinary and special daily allowances were increased from Rs 1,750 to Rs 3,000 and from Rs 2,800 to Rs 4,800 respectively, equal to the allowance offered to grade-22 officers of the federal government.
The process of passing/issuing such self-serving laws/notifications on the part of legislators is not new. Supreme Court on April 17, 2013 suspended a notification issued on March 14, 2013 by the then Interior Minister giving him and all his predecessors lifetime perks and privileges. Hearing a suo moto case regarding the unlimited perks and privileges granted to two former prime ministers, all former interior ministers, Sindh chief minister and other senior officials by the outgoing government, the five-judge bench headed by then Chief Justice, Iftikhar Muhammad Chaudhry, sought a response from relevant authorities in this regard. What happened thereafter was never made public—whether any final order was passed or not.
The most abhorrent instance of enacting insidious laws was when all the political parties, while enacting in the Election Act, 2017, collusively and cleverly, ensured non-disclosure of essential details in the nomination forms to be used in the forth-coming elections. It was a blatant act of defrauding voters. Withholding vital information relating to payment of taxes and loan write-offs etc. was in clear conflict with Articles 62 and 63 of the Constitution. We mentioned this act of conceit and cheat in ‘Embarrassing disclosures’, The News, January14, 2018. Earlier we commented on various issues connected to reforms in electoral process and amendments in laws related to scrutiny of declarations of candidates and elected members [‘Reforms & elections’, The News, August 13, 2017 ‘Scrutiny of legislators’ declarations’, The News, September 24, 2017, ‘Perjury and disqualification’, Business Recorder, November 24, 2017, ‘Open governance doctrine’, Business Recorder, January 19 & 25, 2018].
The National Assembly on October 2, 2017 passed the Elections Act, 2017—a law to consolidate eight election laws. When the law was passed in National Assembly, there were less than 50 members present in a House of 340 but no one pointed out lack of quorum! Opposition leader Syed Khurshid Shah said: “I feel myself ashamed on seeing the situation in the House. Only a couple of ministers out of 53 cabinet members are present.” The House passed the Election Act, 2017 ignoring nearly 100 amendments moved by the Opposition. Pakistan Tehreek-e-Insaf also staged a token protest walkout against the attitude of Law Minister in rejecting their proposals. In the Senate, when it was passed on September 22, 2017, only 76 members out of 104 cast their votes.
After the passage of the Election Act, 2017, writs were filed in the Lahore High Court challenging the vires of ‘Form A’ and ‘Form B’ appended with the Election Act, 2017 [“the Act”], nomination forms for participation in the election to an assembly and the statement of assets and liabilities under the Act on the ground that the forms were drafted by Parliament in contravention of the Constitution and that jurisdiction actually lies with Election Commission of Pakistan [“ECP”]. The Lahore High Court, in its order passed in Writ Petition No. 126184 of 2017 and connected writs, held as under:
“The lack of disclosure and information in the Impugned Forms essentially means that a voter will not have the required information on the basis of which an informed decision can be made. To make an informed decision voters require basic information about a candidate which includes information about educational qualifications, profession and/or business/jobs held, travel abroad. Voters also require information to establish the credibility of a candidate meaning thereby information about dual nationality, income tax paid, agriculture tax paid, loan default, government due defaults, criminal record and information of assets and liabilities. Finally the third set of information required is information which enables a voter to assess the track record of the candidate, in terms of what he has done, especially if he or she has served as Member Parliament or Senate. Hence information such as major contributions made, issues raised, and positions taken by the candidate over the years is relevant for the voter. There are two important aspects to this issue. First that a voter must be well informed about all the credentials of a candidate on the basis of which he or she can decide how to cast their vote. Decisions should not be based on campaign slogans and posters. Second is that when candidates present themselves for the National Assembly it is incumbent upon them to declare vital and relevant information which establishes their credibility and remains the barometer against which it can be determined whether the candidate is honest and fulfills the qualification requirements of Article 62 of the Constitution.
“….. by generalizing the declaration for the purposes of Article 62 and 63 of the Constitution a voter is deprived of essential information and required disclosure on the basis of which an informed decision can be made. Additionally for the purposes of raising objections and scrutinizing the nomination forms, the lack of information and declaration essentially erodes the constitutional mandate and the whole purpose of scrutiny is diluted. Parliament consists of political actors who have a keen interest in the quantity and quality of information available in the public domain. They are also interested in the nature of the disclosure and quantity of information that is required to be made in the nomination forms. It is for this reason that the Constitution protects the rights of the voters through the ECP, to ensure that at the time of election an informed decision is made. The requirement of Article 218, casting a duty on the ECP to organize and conduct honest, just and fair elections as per law, includes the duty to ensure that all necessary and required information, disclosure and declarations are made by a candidate. While Parliament can make the laws to regulate the conduct of elections, the ultimate authority and responsibility to ensure free and fair elections is of the ECP. Hence ECP is responsible to ensure that a voter is able to make an informed decision and that the nomination forms achieve this objective.
“In view of the aforesaid, these petitions are partially allowed in the following terms:
(a) The challenge to the drafting of the Impugned Forms by Parliament so as to become a part of the Act, is dismissed having no merit;
(b) The term “dependent children” used in the Act, specifically in Sections 60, 110 and 137 and in Form A and Form B is held to be read down to be construed and interpreted in terms of the constitutional requirement provided for in Article 63(1)(n) and (o) of the Constitution;
(c) The Impugned Forms do not provide for mandatory information and declarations as required by the Constitution and the law and the ECP is directed to ensure that all mandatory information and declarations are included in the Impugned Forms;
(d) The ECP is empowered to add or improve Form A and Form B of the Act so as to fulfill its constitutional mandate of ensuring honest, just and fair elections”.
Para 4 of the order specifically mentioned:
“In response to the notices issued by this Court, report and parawise comments have been filed on behalf of Respondent ECP. Chaudhary Umer Hayat, Director Legal, Election Commission of Pakistan appeared and stated that historically the ECP has always made the nomination forms and in terms of PLD 2012 SC 681 (supra) and PLD 2013 SC 406 (supra), this falls squarely within the mandate of the ECP. However, without adhering to the mandate of the law, the Parliamentary Committee on Electoral Reforms opted to draft the Impugned Forms. In this regard, the ECP voiced its opinion and complained through letter dated 18.5.2017 wherein it is requested that the ECP, in the very least, be heard by the Parliamentary Committee for Electoral Reforms before any draft is prepared. However, this request was not adhered to. He further argued that the ECP is not satisfied with the disclosure element in the Impugned Forms as mandatory provisions of the law have been ignored and information which is vital and fundamental for just and fair elections have not been provided for in the Impugned Forms. In this regard, he supported the arguments made by the learned counsel for the Petitioners and agreed with the contents of the comparative chart provided by the learned counsel for the Petitioners. He further clarified that the ECP can rectify the disclosure requirements within one week, if required”.
(To be continued on Sunday)
(The writers, lawyers and partners in HUZAIMA, IKRAM & IJAZ, are Adjunct Faculty at Lahore University of Management Sciences)
