UPDATE ON THE PERFORMANCE OF DEMOCRATIC INSTITUTIONS MARCH 2021 2 UPDATE ON THE PERFORMANCE OF DEMOCRATIC INSTITUTIONS MARCH 2021 This update is meant to identify key developments during the month on Performance of Democratic Institutions in Pakistan with selected high- profile international developments included occasionally. IN THIS ISSUE 1 Senate Elections under Secret Ballot 2 Prime Minister Seeks Fresh Vote of Confidence 3 PM and PTI Ministers criticize the ECP 4 The Saga of Senate Chairman Election 5 PDM Alliance and Leader of the Opposition in the Senate 6 PTI, PPP Legislators clash in Sindh Assembly 7 Islamabad Security Dialogue: PM and COAS call for civilized relations with India 8 IHC orders removal of Lt General Asad Durrani’ s name from ECL 9 Senior Parliamentarians Council 10 NA-75 Bye Election and the Supreme Court 11 Peshawar High Court Adjourns Cases of Military Court Convicts 12 Supreme Court warns of uncontrolled Judicial overreach 13 Ministers threaten to attack Judge with Rockets if Sindh Assembly Membership suspended 14 Supreme Court allows DHA Quetta to develop schemes 15 Supreme Court Orders Restoration of Local Government in Punjab 16 Justice Qazi Faez Isa Case 17 Change in Federal Cabinet 18 Removal of HEC Chairman MARCH 2021 UPDATE ON THE PERFORMANCE OF DEMOCRATIC INSTITUTIONS 3 IN THIS ISSUE 19 Chairman, Deputy Chairman Senate call on PM and President 20 Fourth conference of Speakers of Parliaments ends in Turkey 21 COAS calls on PM 22 British High Commissioner calls on COAS 23 Qatari Land Forces Commander calls on COAS 24 German Ambassador to Pakistan calls on COAS 25 Ambassador Zalmay Khalilzad calls on COAS 26 COAS and DG ISI attend a session on Afghan 27 Peace Process in Bahrain 28 Uzbekistan FM and COAS discuss Afghan peace 29 process Ambassadors of Denmark, Canada and European 30 Union (EU) call on COAS US Defence Secretary praises Pakistan’s role in 31 Afghan Peace Process Saudi Commander Royal Saudi Land Forces calls 30 on COAS 31 Ukrainian Ambassador calls on COAS 32 Myanmar Coup SENATE ELECTIONS UNDER SECRET BALLOT On March 1, the Supreme Court of Pakistan in its opinion said that elections for the Senate are to be conducted through secret ballot as required under the Constitution. On December 23, 2020, in a reference, President of Pakistan had sought the opinion of the Supreme Court on whether Senate election can be held under the article 226 of the Constitution. Article 226 of the Constitution reads that “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.” In its opinion, majority of the judges said that Senate election is to be held under article 226 and thereby through secret ballot. Justice Yahya Afridi in his minority opinion held that the presidential reference sought opinion which is not a question of law within the contemplation of Article 186 of the Constitution is returned unanswered. The Supreme Court, in its opinion, also asked the ECP to look into the possibility of using technology to guard against corrupt practices in terms of its responsibility under Article 218 of the Constitution. Since the opinion came just two days ahead of the Senate election scheduled for March 3, the ECP in view of the ‘time constraint’ decided to conduct elections as per past practice and by secret ballot but formed a three- member committee to explore possibility of use of technology in the next senate elections. 1 On March 2, at a PILDAT Virtual Forum on Supreme Court Judgement: Open or Secret Ballot in Senate Election? panellists strongly supported the decision by the Election Commission of Pakistan and shared consensus on holding Senate election through Secret ballot. The panel at the PILDAT Forum included Mr. Shahid Hamid, Senior Advocate Supreme Court and Former Governor; Former Caretaker Federal Minister, Mr. Fawad Hasan Fawad, Former Principal Secretary to Prime Minister, Mr. Ahmed Bilal Mehboob, President PILDAT while the forum was moderated by Ms. Aasiya Riaz, Joint Director PILDAT. Opening the Forum, Mr. Ahmed Bilal Mehboob said that while the issue of the secrecy of the ballot for the Senate Election 2021 is resolved, it remains to be seen how this is played out in the future. In raising various questions emanating from the Supreme Court’s opinion on the Presidential Reference on Senate election. 1 Dawn (2021) Senate polls be held through secret ballot, rules SC. Available at https://www.dawn.com/news/1610252 (Accessed 02 March 2021). MARCH 2021 UPDATE ON THE PERFORMANCE OF DEMOCRATIC INSTITUTIONS 5 He questioned whether the opinion by the Supreme Court is to be treated as binding or just an opinion? He also asked what is the relevance of the 1967 Niaz Ahmad v. Azizuddin & Others (PLD 1967 SC 466) regarding secrecy of the ballot for Senate election. Mr. Mehboob also raised a question about future relationship between the Supreme Court and the Election Commission of Pakistan in the context of the tone and tenor of exchange between the two during the hearing of the presidential reference. Mr. Fawad Hasan Fawad believed that it was premature to discuss secrecy of ballot until detailed opinion of Supreme Court was available. However, supporting secret ballot to be the basis for Senate Election, he argued that this was a well-considered decision by the framers of the 1973 Constitution and has not been changed since despite many amendments to the Constitution. Commending the Election Commission of Pakistan, he said that the ECP has shown tremendous restraint in answering queries of the Supreme Court adding that restraint in exercise of power in discharge of its duties essentially increases the stature and respect of the institution. Mr. Shahid Hamid believed that while opinion of the Supreme Court is not binding, there have to be concrete reasons on why an opinion cannot be implemented. Disagreeing with the minority view of Justice Afridi, Mr. Shahid Hamid believed that issue of corrupt practices is indeed an issue. He supported secret ballot and commended the decision of the ECP in holding Senate Election 2021 accordingly. Mr. Hamid, argued, however, that the issue of corrupt practices must be resolved and the Parliament and relevant institutions have three more years to resolve this before the next Senate election.2 PRIME MINISTER SEEKS FRESH VOTE OF CONFIDENCE Prime Minister Mr. Imran Khan In the Senate Election held by secret ballot on March 03, candidate of the PTI-led ruling coalition, Dr Abdul Hafeez Shaikh, Finance Minister at the time, suffered defeat at the hands of opposition’s Syed Yousuf Raza Gilani. After the Senate election results, Prime Minister Imran Khan sought a fresh vote of confidence from the National Assembly on March 6 which resulted in him obtaining 2 more votes of confidence than what he received in August 2018 at the time of his election as PM. 3 2 PILDAT (2021) PILDAT Virtual Forum on Supreme Court Judgement: Open or Secret Ballot in Senate Election. Available at: https://pildat.org/top-featured/pildat-virtual-forum-on-supreme-court-judgement-open-or-secret-ballot-in-senate-election (Accessed 02 March 2021). 3 Dawn (2021) Imran wins trust of NA amid opposition boycott. Available at https://www.dawn.com/news/1611136. (Accessed 17 March 2021). 6 UPDATE ON THE PERFORMANCE OF DEMOCRATIC INSTITUTIONS MARCH 2021 PM AND PTI MINISTERS CRITICIZE THE ECP Addressing the nation on March 04 after the Senate election, Prime Minister Mr. Imran Khan accused the ECP of protecting those who made money by holding the Senate elections through secret ballot alleging that “money was used” in the Senate election. He said that “when the Supreme Court gave you a chance and asked you to keep the election secret but ensure identification of the ballot, for example today if we want to know that who are those 15, 16 people, who traded their conscience? But you saved them by allowing secret ballots. You have damaged our democracy and morality. What kind of democracy is this where a senator wins by paying money?” 4 In what it termed as a rebuttal of Prime Minister’s statement regarding the ECP on the Senate election, the ECP issued a press statement on March 5 saying that the commission was saddened to hear of the views by the Prime Minister and those of his cabinet colleagues. The statement highlighted that the ECP is a Constitutional and independent institution and its actions are guided by the authority vested in it under the constitution and laws of Pakistan. If anyone has an objection on the directives and decisions of the ECP, they are free to follow the Constitutional route while the ECP acts independently, adding that neither the ECP has bowed to any pressure before, nor will it do so. 5 “It is a shocking matter that under the same staff in the same [election] under the same roof on the same day, [what they won] is acceptable and [what they lost] is unacceptable. Is this not open contradiction?” the ECP questioned in its rebuttal, adding that “The ECP rejects this.” On March 15, taking an unprecedented and dangerous perspective, three PTI Federal Ministers including Mr. Shafqat Mahmood, Minister for Federal Education, Professional Training, National Heritage and Culture; Senator Syed Shibli Faraz, Federal Minister for Information and Broadcasting and Mr. Fawad Choudhry, Federal Minister of Science and Technology, demanded resignation from all the five members of the Election Commission of Pakistan alleging the ECP had “completely failed” in making Senate election transparent. The Ministers maintained that all political parties, including the ruling PTI, had lost confidence in the ECP and the current ECP could not continue if the political parties and people of the country did not have confidence in it or saw its decisions with suspicion.