News Analysis: Dangerous precedent, warn legal experts

KARACHI: The power granted to the caretaker government to take actions or decisions regarding existing bilateral or multilateral agreements and projects by the Elections (Amendment) Bill, 2023 passed by parliament on Wednesday are a dangerous precedent and could lead to further intrusive changes later.

Legal experts have questioned both the intent and form of the amendment made to Section 230 of the Election Act, 2017. PILDAT President Ahmed Bilal Mehboob says that the amendment poses “a major issue -- which is that you are enhancing the power of a government that is not elected and does not have the mandate of the people. That is why minimal powers are given to a caretaker government, which by nature is nominated and not elected. If you look at the preamble of the constitution of Pakistan, it very clearly states that power will be exercised by the chosen representatives of the people. In my opinion, this amendment creates a constitutional issue.”

“The very use of the term ‘caretaker’ in the constitution appears to be by intent -- the caretaker setup is not to make any decision which would in fact be typically within the domain of elected representatives, who represent the will of the people”, adds Supreme Court advocate Basil Nabi Malik. Barrister Rida Hosain explains that “Section 230 of the Election Act 2017 has identified certain limits on the authority of a caretaker government. For instance, Section 230(2)(a) states a caretaker government shall not take major policy decisions except on urgent matters. Section 230(2)(b) states that a caretaker government shall not take any decision or make a policy that may affect the future elected government. The rationale for this is clear – a caretaker government does not enjoy the mandate of the people of Pakistan.”

The bill passed on Wednesday has added a clause to Section 230. Per clause 2A, sub-sections 1 and 2 in Section 230 (which set out limits for the caretaker government) “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, the Inter-Governmental Commercial Transactions Act 2022, and the Privatisation Commission Ordinance 2000.”

Lawyers and legal observers are worried about the power this new clause hands over to a caretaker government. Barrister Rida Hosain calls this “a carve out that has been created....Regardless of the fact that the amendment is limited to existing agreements and existing projects, unelected individuals should not enjoy decision-making powers which are at par with an elected government. Crucially, it will give caretakers the right to make decisions which could potentially pre-empt the exercise of authority by the future elected government.”

Per Barrister Ali Tahir, there is a fear that “Practically speaking, such powers could be utilized by a caretaker to entrench economic decisions which it does not have the constitutional mandate to even take, or otherwise use such powers for the advantage of certain political parties.” Basil Nabi Malik calls this “a dangerous precedent in a country which is already struggling from the stress of non democratic forces stifling the democratic project. The amendments may seem innocent, but ceding ground on this would open the door for more intrusive changes later.”

Lawyer Abdul Moiz Jaferii is interested in the tweaked amendment to Section 230 that was passed on Wednesday, the original proposed amendment being somewhat different. He attributes the change to “perhaps the pressure of the allies in this PDM governing bringing the PMLN into more conformity with democratic norms. So yesterday we saw a very vague allowance being given to interim dispensations to effect any administrative action ‘for the purposes of protection of economic interest of Pakistan, dealing with bilateral and multilateral agreements, with the international institutions and the foreign governments’. This was effectively an attempt at allowing caretakers to effect wholesale and long term changes to policy if it deemed that our agreements with international lenders required it.”

There is a very real question here also on just how in keeping with the constitution the amendments to Section 230 are. In Basil Nabi Malik’s opinion, “the vires or legality of the amendments on the touchstone of the constitution are likely to arise here. The debate could entail the query as to whether the said amendments had in fact gone against the very letter and spirit of the constitutional provisions which created it, and if so, should it be struck down, read down, or harmoniously interpreted. It may be noted that the election laws must be in alignment with the constitution, not the other way round.”

High court advocate Abuzar Salman Khan Niazi says that the amendments are in violation of the judgments of the Supreme Court, “in particular the Naimatullah Khan Case...They are also in conflict with the preamble of the constitution.” On a possible legal challenge, legal experts seem to be on the same page regarding litigation on the amendment to Section 230. Abuzar Niazi says the amendment “must be challenged in court -- in a high court under Article 199 or in the Supreme Court under Article 184(3) -- since it amounts to civilian martial law.”

Calling the amendments “a direct affront to the democratic spirit of our constitution” Barrister Tahir says that he is “certain the amendment will be challenged either or both under Article 199 and Article 184(3) of the constitution before the high courts and the Supreme Court.” Ahmed Bilal Mehboob too feels the amendment could be challenged in the Supreme Court and that “there could be a good reason to do so -- because it runs counter to the very philosophy of a caretaker govt, which is supposed to run only day-to-day affairs of the state.”

Barrister Rida Hosain explains that in the past “superior courts have in various judgments ruled on the limited powers of a caretaker set up under the constitutional framework. In the Khawaja Asif Judgment, the Supreme Court held that ‘having no mandate of public support, it is only [a] caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country.’”

The elephant in the room is why such an amendment was even at this time. Ahmed Bilal Mehboob says that the amendment gives “rise to the suspicion of the possibility of an extension in the term of the caretaker setup because after all within the next three months there is very little likelihood that such powers will need to be exercised. It also gives rise to the idea that the PM that comes in as caretaker will be close to the current government and instead of exercising independence will actually be an extension of the current government. The credibility of the election was in doubt previously too, and with this amendment it has been further jeopardized.” He is not alone in this assessment. Barrister Ali Tahir also feels that the “amendments are being brought in so that the caretaker government might function past its permissible tenure, as has happened in Punjab and Khyber Pakhtunkhwa, without legal limitations on it just as an elected government would.”