A lot has been written and discussed in media on the way Senate elections were held last month. Neither the reservations have been expressed for the first time nor the suggestions for improvement. Whether the suggested way forward will serve the intended objective without vesting Senate the equal power, remains the question.
To find the answer, analysing the fault-lines in Senate election and its very structure is very important. As issue is quite exhaustive but for the purpose of brevity, following areas merit frank analysis in historical analysis: (1) How elections are conducted; (2) What is the role of Senate; (3) Why do candidates spend money; and lastly (4) how can it be transformed into an effective organ of Parliament.
There are unicameral or bicameral systems in different democracies. Pakistan opted for the later. Bicameral systems have more than one models in place. In the United Kingdom’s House of Lords (Upper House), Queen used to nominate its members generally from the aristocrats. Their role was to guide the House of Commons (Lower House).
The lords gradually started enjoying ample powers except on the matters relating money bills. The rationale for this stemmed from the dictum “no taxation without representation”. India has a hybrid system where majority is elected by the state (provincial) assemblies. A few are elected directly and through the nomination from the president. Money bill too is subject to its approval but in case of dissent, the Speaker has a final say.
Senate of Pakistan is a combination of different models adopted from USA and Latin American countries where senators are elected. The membership of the Senate, originally 45, was raised to 63 in 1977 and 87 in 1985. The government of Gen. Pervez Musharraf increased the strength to 100 and then to 104 by the PPP government through 19th Amendment in 2014 by adding one minority member each from four provinces.
Increasing the size made the Senate unwieldy. Such changes hardly enhanced its quality. It also made difficult for the parties to maintain discipline on Electoral College. Eventually, the basic purpose of this exercise has been defeated which was to make it sharper, lean and manageable.
The USA Senate has not witnessed any expansion since its 1789 when it was decided that each state will have only two senators. There is no provision for senator from Washington DC, the federal capital.
American constitution provided that “The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years; and each senator shall have one Vote." The framers believed that in electing senators, state legislatures would cement their tie with the national government, which would increase the chances for ratifying the Constitution. But here Senate is hardly a strong link between provinces and federation.
In USA, switching over to direct election was painstaking as well evolutionary. Apart from conflict between Southern and Northern States they too faced same issues that we hear these days in our country such as intimidation and bribery marked some of the states' selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in electing senators.
From 1893 to 1902, momentum increased considerably the Senate fiercely resisted change. We may note no such efforts have been made here except few lone voices on media. In USA, after the turn of the 1900s momentum for reform grew rapidly. William Randolph Hearst expanded his publishing empire with cosmopolitan, and championed the cause of direct election. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators, portraying them as pawns of industrialists and financiers. The pieces became a series titled "The Treason of the Senate," which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public into maintaining pressure on the Senate for reform. In Pakistan we don’t find too much dissertations on direct elections.
Eventually, USA parliament succeeded through the 17th Amendment in 1913 for electing senators through direct votes. That restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof." In addition, it allows the governor or executive authority of each state, if authorised by that state's legislature, to appoint a senator in the event of a vacancy, until a general election occurs. The purpose of recapturing USA system is to focus and point out difficulties that Parliament may confront in case it switches over to direct election.
In Pakistan, the Senate has been given equal powers, so as far the amendment or enactment of new laws except the money bill which has been taken out of its ambit on the pattern of UK. It was perhaps not kept in mind that the senators here are elected. It’s matter of knowledge; different kinds of laws get passed disguised as “money matter” to avoid approval of Senate. This is for reason that Finance bill is not discussed threadbare in either house.
In the case of conflict between two houses on any legislation the same is presented before the joint house. In such a case the law gets passed despite the opposition by the Senate due to numerically strength of National Assembly. So one could infer that in reality Senate enjoys no power. In this context it will be relevant to look at USA Senate powers which is “role mode” for every facet of life in our country.
American Senate has exclusive powers to conduct impeachment trials of president and other high-ranking officers serving as jury and judge. Since 1789 the Senate has tried seventeen federal officials, including two presidents. Similarly the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States as well judges of SC.
In Pakistan law has settled whereby criterion for judges appointed has been determined and is out of the executive’s ambit. Regarding powers on other appointments, one constitution expert termed it interference in domain of executive. But is Senate not part of executive where some of its members get birth in cabinet?
Senate is also empowered to approve, by a two-third vote, treaties made by the executive branch. The Senate has rejected relatively few of the hundreds of treaties it has considered. Powers of Senate in rectification of international treaties is significant for Pakistan. It’s no secret that animosity exists and bitterness among smaller provinces. A lot has written against mode and manner CPEC concluded. One ex-senator from Balochistan termed this as selling of Gwadar to China. Similar reservation expressed the way huge mega energy projects commissioned. Had Senate was vested powers like its counterpart in USA, these projects would have strengthened federation rather creating rift.
Senate in Pakistan may become hub of corruption and blackmailing in case it has final say in important appointments, observed one political scientist. But are the appointment made by PM (or by committees constituted by him) on merit or to adjust personal loyalists? Many appointments have been set aside by higher judiciary having been made in violation of prescribed procedure.
On empowering senators one prominent politician questioned their capacity as few senators contribute positively in legislative work. If so what has been the contribution of NA in dissecting legislative work could be a counter argument.
Another question is that if senators don’t possess power particularly on money bill, why do they invest a lot for becoming its members? We understand that senators are people of rich means and wanted to have a say in the corridor of power to protect business interest or as a status symbol.
The way members of the provincial assemblies switch loyalties poses a question mark on the discipline within the political parties. Open voting has been suggested to check the wheeling dealing but we have recently seen that MNAs who deserted their parties were not hit by the defection clause by the Election Commission of Pakistan.
We hear a lot of grievances of smaller province against the dominance of Punjab because of its size. But surprisingly PPP government based in relatively smaller province did nothing to empower Senate when it almost touched every article of constitution in 18th Amendment. Similar question also arises that the current government rushed through the Parliament to amend Election Act 2017 to enable even convicted person to head the party did nothing to reform Senate while it is now crying foul.
Each party always makes lot of noises on mode and manners the Senate election are held and very conveniently raise fingers on hidden forces in case of losing. But they do nothing to reform Parliament in general and Senate in particular when in position of power. This is evident from different amendments made in Election Act in 2017 in the names of “reforms” that hardly touched anything about Senate. This only shows unserious approach of main parties or its conduct is more dictated by “expediencies.”
That said, it is imperative to provide teeth and muscles to all federating units through empowering Senate in important institutional appointments and in international trade matter. Besides, there could hardly be any argument against the election of senators through direct votes. This should be the minimum agenda of all the political parties for the forthcoming elections in case the intent and resolve is to make the federation and federating units as springboard to transform populace into a nation.
Author is Lahore-based analysts and tweets Chafqat