Parliament House of Pakistan. Photo: Tahir Sultan Bhutta / Wikimedia Commons
On 17 November 2021, the Pakistan Tehreek-i-Insaf (PTI) bulldozed 33 bills through a joint sitting of both houses of Parliament with no meaningful discussion. According to most political observers, the joint session symbolised the government's growing insecurity in the face of an increasingly vocal opposition, as well as fears of internal defections over key legislative amendments. It was also necessitated by the PTI government's inability to introduce two bills on 9 November (one which aimed to prevent politicians from changing parties for seven years, and the other which sought stronger punishment for 'obnoxious remarks' targeting women). Despite having a numerical majority in the National Assembly, Pakistan's lower house, the PTI is preventing opposition bills from being put to the vote and sent to the relevant committees, highlighting the shaky ground that the coalition government currently stands on.
That the joint session had to be 'protected' by sergeants-in-arms reveals the coalition government's increasing reliance on non-parliamentary traditions. Given that the PTI has been bypassing Parliament ever since coming to power in 2018, recent events have once again raised questions about whether the party is truly democratic in nature. Perhaps nowhere is this entangled – and conflicting – relationship more visible than in the PTI government's consistent efforts in governing through ordinances rather than via legislation passed through proper parliamentary channels, including committee work and subsequent debates. Since coming into power in 2018, the PTI government has passed 68 ordinances as of 8 November 2021 – a sharp increase from the 48 ordinances passed between 2013 and 2018 by the government under Pakistan Muslim League-Nawaz (PML-N).
While article 89 of the 1973 Constitution of Pakistan gives the president powers to promulgate an ordinance – particularly when Parliament is not in session or when extraordinary circumstances merit an urgent response – the PTI government has made no effort to meet this criteria. In February 2021, the president signed off on an ordinance to hold polls for the Senate, Pakistan's upper house, through open vote, days after proroguing Parliament. In October 2020, after proroguing the National Assembly session on 29 October, the president signed eight different ordinances.
The PTI has not made any effort to build cross-party consensus on key legislation in order to avoid being defeated in numbers.
Sidestepping Parliament, opposition parties and parliamentary debates, the PTI government passed 92 laws between August 2018 and February 2021, 51 of which were ordinances, according to an investigation by the television channel Geo TV. The 33 bills passed in Parliament on 17 November included some highly controversial ordinances, including a bill to amend election laws to allow the use of Electronic Voting Machines (EVMs) and give Pakistanis living outside the country the right to cast votes.
A numbers game
Conventional wisdom suggests that political leaders rely on ordinances when they expect their bills to be rejected or are unsure whether they will be able to muster enough support for them. The numbers game in Pakistan in the past three years, however, has been tricky. Even though the PTI coalition has a parliamentary majority, it lost a crucial Senate election to the opposition in March 2021, when the PTI Finance Minister Abdul Hafeez Shaikh lost to the Pakistan Peoples Party's Yusuf Raza Gillani, who was supported by the coalition members of the Pakistan Democratic Movement (PDM). The ruling PTI party also failed to win a majority in the Senate, with many lawmakers switching allegiance and voting for opposition candidates. As early as 2019, Prime Minister Imran Khan admitted that reliance on ordinances was a necessity borne out of the numbers game.
While the government has been casually converting ordinances into bills, even if it includes, as one observer who requested anonymity put it, "offering incentives to the coalition partners and its members of the parliament", beyond simply allowing the PTI to run state business unhindered, this rendering of parliamentary processes ineffective has deeper consequences. According to an opposition leader who requested anonymity, the fact that the PTI has turned parliament into an "ordinance factory" shows how the government is directly undermining the political and democratic processes that Pakistan's major political parties were able to revive in 2008, after a sustained struggle against the military regime of Pervez Musharraf. In that context, most opposition leaders who talked to the author believed that the core reason for the PTI's reliance on ordinances is the authoritarian mindset that Imran Khan has brought to the Parliament. While the number game continues to lurk in the background, the PTI has not made any effort to build cross-party consensus on key legislation in order to avoid being defeated in numbers.
In May 2021, when the government promulgated an ordinance authorising the Election Commission of Pakistan (ECP) to procure electronic voting machines (EVMs), it did so days after the speaker of the National Assembly of Pakistan had established a parliamentary committee to engage the opposition on the crucial question of electoral reforms. That an ordinance was promulgated without waiting for the committee's recommendations shows the lack of effort on the part of the PTI to build consensus even on key national issues. As one member of the PML-N put it, "that the PTI has been shying away from the opposition parties is more of a reflection of the ruling elite's authoritarian mindset than the number game. It is a mindset that the PTI has inherited from Pakistan's military rulers."
By allowing Pakistanis living outside the country the right to vote, the PTI stands to add between one to one and a half million votes to its vote bank, giving the party a comparative advantage over the PML-N and the PPP.
There is some historical evidence to substantiate this contention. For instance, even when the military regime of Pervez Musharraf had a majority in Parliament between 2002 and 2008, it promulgated 121 presidential ordinances, compared to a mere 50 pieces of legislation, according to research from Geo TV. When Musharraf imposed a state of emergency in November 2007 to protect his rule from possible disqualification by the Supreme Court of Pakistan (which many considered akin to 'mini' martial law after 1999), he went on to promulgate 35 ordinances between 3 November and 15 December 2007.
"Pervez Musharraf's decision to flood Pakistan with ordinances shows how ordinances are more of a political, rather than a legislative, tool", emphasised the PML-N leader, adding that "Imran Khan's unconditional love for this tool is borne out of both a political necessity whereby he can avoid the opposition and his intrinsically authoritarian mindset that he seeks to perpetuate." To be sure, issuing ordinances is not unusual in Pakistan, as both the Pakistan Peoples Party (PPP) and the PML-N issued 135 ordinances between 2008 and 2018. On most occasions, however, these ordinances were converted into legislation only after allowing for parliamentary discussion and debate.
What makes the PTI government different from its older parliamentary rivals, the PPP and PML-N, is not just the number of ordinances it has issued and converted into legislation without following due process, but that "it is a 'hybrid-regime' with an authoritarian mindset", according to a Senator belonging to the PPP, who also requested anonymity. The PTI's close – and widely known – association with the Pakistan Army is one key reason for this mindset.
Carving out a new constituency
With the military establishment standing by the PTI, the ruling party feels it needs to rely less on practical politics to build its future, and more on extra-political means to secure a victory in the next elections. For this very reason, the PTI forced its way through passing the elections amendment bill – which was first implemented as an ordinance – that introduced both the use of EVMs and gave expatriates the right to vote. "Both of these changes … stand to benefit the PTI more than any other party," added the PPP Senator, who also thinks that "whereas EVMs are prone to 'digital hijack', as many of us believe, an unqualified extension of the right to vote to overseas Pakistanis is nothing short of carving out a new constituency for the PTI to secure a victory in the next elections in 2023."
Out of over 9 million Pakistanis living abroad, about 58 percent of them fall in 20 districts' constituencies where the PTI either has a sizable presence or hopes to create more support. As many as 91 National Assembly seats fall within these 20 districts, as Geo TV's research shows. Out of these 91, the PTI currently holds 52. The investigation suggests that by allowing Pakistanis living outside the country the right to vote, the PTI stands to add between one to one and a half million votes to its vote bank, giving the party a comparative advantage over the PML-N and the PPP.
Military-PTI concordance, therefore, remains key for both the PTI's own political future and the military's interests in amending the constitution to centralise power.
"Bulldozing [this ordinance] through a joint sitting of the parliament without a debate and committee work is, thus, part of the PTI's plan for 2023. This is one key reason why all opposition parties opposed this bill", said a member of the Awami National Party (ANP). The leader of the opposition, Shahbaz Sharif, called EVMs "evil and vicious machines."
The opposition's claims about the PTI's high-handed political conduct have also been substantiated by the Election Commission of Pakistan (ECP). In a document submitted by the ECP to the Senate Standing Committee on Parliamentary Affairs, it observed that the machine was vulnerable to tampering and its software could easily be altered. "It is nearly impossible to ensure that every machine is honest," warns the document. The fact that the ordinance for the use of EVMs was made law without addressing these concerns and without the agreement of other political parties clearly contradicts the PTI's claims that the use of EVMs would help control election rigging.
Constitutional manipulation
Sacrificing due political process for short-term political gain will not only unsettle Pakistan's political landscape, but also have serious repercussions for its multi-ethnic federation. If past experience is any guide, the weakening of Pakistan's parliament has the potential to result in the weakening of civilian institutions. "If civilian institutions are weak, non-civilian actors, that is the military establishment, will become stronger", stressed the PML-N leader the author spoke to. The military's ascendance in Pakistan, whether directly through martial law or indirectly through 'hybrid-regimes' that relies on the military for survival can jeopardise the federation of Pakistan.
As highlighted in a previous piece for Himal, the military-backed regime has been actively engaged in revising the 18th constitutional amendment ever since coming to power in mid-2018. That it has not been able to materialise its agenda is largely due to the fact that it does not hold a two-thirds majority in the parliament.
For many political leaders in Pakistan, the PTI's politics of ordinance is tied very closely and directly to the future of the 18th amendment, to the extent that a PTI landslide victory through manipulation of EVMs plus the overseas vote could help the 'hybrid-regime' get enough seats in the next Parliament to reverse the 18th amendment. Indeed, this was the message that the co-chairman of the PPP and former president of Pakistan Asif Ali Zardari gave in his speech delivered on 30 November, 2021 to mark 54 years since the formation of the PPP. "All democrats have a duty to protect the 18th amendment", stressed the former president, who oversaw the crucial amendment that not only transferred most powers from the centre to the provinces in 2010, but also reversed most constitutional changes made by military rulers Zia-ul-Haq and Pervez Musharraf through the 8th and the 17th amendments.
The military's ascendance in Pakistan, whether directly through martial law or indirectly through 'hybrid-regimes' that relies on the military for survival can jeopardise the federation of Pakistan.
For the Pakistani military, a decentralised system has never been an acceptable constitutional arrangement. Therefore, the stakes for the military to remove the 18th amendment have never been higher, given how the system, by constitutionally determining provincial finances, has deprived it of the ability to manipulate the national exchequer to its advantage.
Reversing the 18th amendment, however, is a venture that the military establishment cannot expect to undertake in a government led by the PPP or the PML-N – parties that signed the Charter of Democracy in 2006, which then laid the foundation of the 18th amendment in 2010. While the PPP is politically predisposed to a decentralised system, the PML-N's perennial tussle with the military establishment and the support it provided to the reform committee between 2009 and 2010 to build the 18th amendment make it highly unlikely to support any attempts to reverse it.
Military-PTI concordance, therefore, remains key for both the PTI's own political future and the military's interests in amending the constitution to centralise power. It is for this reason that the hybrid-regime was so keen to pass this ordinance to amend election laws. "In the wake of the PTI's extremely poor economic performance and its consistently falling reputation, forcing electoral change is the only way they can hope to come to power in 2023", said the PPP senator. The politics of passing ordinances in the Pakistani context goes beyond the fear of government-sponsored bills being rejected; rather it serves as a key conduit for deeper political games of regime-survival and constitutional manipulation. The future of not just a political party or player, but of Pakistan's federation, is at stake.