Senate elections have just concluded in Pakistan and in an element of surprise, the opposition candidates for Chairman and Deputy Chairman have won, with the government slightly bewildered at the happenings. While the news channels were abuzz with fears of horse-trading, the fact of the matter is that the Senate has become the preserve of the unelectables — either those who have failed to get elected to the National Assembly (for various reasons), or those who need to be accommodated for some reason. Despite the clamour around the elections, the simple, yet poignant, question of one television anchor, “What does the Senate Chairman actually do?” illustrates the significance of the chamber.
The idea of the Senate was introduced in Pakistan through the 1973 constitution. Before that both the 1956 and 1962 constitutions had a unicameral legislature, which was actually an anomaly amongst the Commonwealth countries. While a number of Commonwealth countries have/had bicameral legislatures, their powers and roles have varied greatly, from wielding almost equal power in Australia, to being a revising chamber in Canada.
In the United Kingdom, from where our conception of parliamentary democracy emerges, the powers of the House of Commons and the House of Lords have varied over the years. Both the houses had almost equal power till the passing of the Parliament Act 1911 which asserted the supremacy of the House of Commons over the House of Lords over money bills. This Act was further solidified in 1949, so that by then it was clear that the main chamber was the directly elected House of Commons, and the hereditary, and from the 1960s appointed, House of Lords was subservient and secondary. Therefore while there has never been a constitutional provision barring members of the House of Lords from becoming prime minister, by the middle of the twentieth century it was seen as inappropriate. Hence, not only was Lord Halifax looked over for the position of prime minister during the Second World War, Earl Home had to resign his peerage and get elected to the House of Commons in 1963 in order to continue his short stint as prime minister.
Despite this demotion of the House of Lords, Lord Carrington served as foreign secretary under Prime Minister Margaret Thatcher from 1979-82, thereby signifying that members of the Lords could still represent the country in international forums. All said, the subsequent stuffing of the House of Lords with political cronies and especially those who have repeatedly lost a Commons election, has led to gradual decline in the importance and prestige of the upper chamber. The House of Lords is now primarily a revising chamber — which is still significant, but it does not wield enough power to thwart the will of the Commons.
The role and importance of the Senate in Pakistan reflects the unclear role of the upper chamber in Commonwealth countries. In simple terms, the upper chamber can be used for two purposes: first, it can be used primarily as a revising chamber. Here the composition of the chamber in terms of representation is not limited to specific rules — the focus is on having certain expertise present in the chamber, no matter where they are from. The second reason for the upper chamber could be for it to represent the federating units in a particular country. In this case the members of the upper house are chosen as either a fixed equal number from each of the units or according to a certain proportional criteria (almost always different from the lower house even with proportional representation in the lower house). As a result in most federal countries, the upper chamber has substantial power, usually in the form of equality, but in the case of the United States proportionally more power and authority than the lower house.
In the case of Pakistan, the 1973 constitution envisaged a federation of four provinces and certain other territories. The upper house under this dispensation represented the federation and therefore all four provinces from the populous Punjab to the sparsely populated Balochistan got the same number of seats. The federal capital and the Federally Administered Tribal Areas also got some seats.
After the disaster of East Pakistan, it was felt that an upper chamber would give the federating units more power while the lower house will focus on direct representation by the people according to population. This would deal with the fears of the populous as well as the smaller provinces, it was believed. However, the reality of it has been that the Senate has merely become a debating chamber and a haven for unelectables; its real purpose of giving not only equal voice to the federating units, but also power, has failed.
In the 1973 constitution of Pakistan, the Senate is clearly not equal to the National Assembly. While, article 70 states that a bill can originate in any house, article 73 clearly states that money bills can only originate in the National Assembly. Further, article 73 (1) and 1A clearly state that while the Senate can make ‘recommendations’ on a money bill, the National Assembly is only supposed to ‘consider’ the recommendations and can either accept or reject them.
The passage of a money bill — the most important bill sans a constitutional amendment, therefore does not depend upon the consent of the Senate. Even in the case of other bills, if there is a disagreement between the two houses, article 70 (3) states that it shall then be presented to a joint sitting of both the houses and shall be passed with a simple majority of the members present. This means that with 342 members the members of the National Assembly will always, even in the case of a joint sitting, have sway over the wishes of the 104 members of the Senate. Further, article 91 (3) clearly states that the Prime Minister must be a member of the National Assembly, and therefore there is no chance for a Senator to achieve this status. (It is interesting to note that in India, which is not technically a federation, the Prime Minister can be from the upper house. Dr Manmohan Singh is a case in point where he remained the Prime Minister of India for ten years, despite being only a member of the Rajya Sabha).
While the 18th Amendment to the 1973 constitution empowered the federating units by abolishing the concurrent list (the level of power sharing envisaged by the Government of India Act 1935 upon which the Constitution of Pakistan is based has still not been achieved), nothing has been done to empower the Senate — the legislative symbol of the federation.
Our understanding of the Senate reflects the falling fortunes of the House of Lords, without — it seems — factoring in the reality of difference between the United Kingdom and Pakistan. The powers of the House of Lords are limited when compared to the Commons primarily because it is an unelected chamber and also because it is not the symbol of a federal arrangement between different units of the United Kingdom. On the contrary, the Senate of Pakistan is an elected chamber (though not directly elected), and exists to empower the federating units of the country. Therefore its composition and function is different than the House of Lords. This reality is not reflected in either the constitution or the functioning of government.
From its inception, Pakistan has been fraught with centre-state tensions. From 1947 each of the federating units had had problems with the centre and the secession of East Pakistan as Bangladesh is a case in point. Even in the rest of Pakistan there has been a continuing insurgency in Balochistan (with few gaps) since 1948, a demand of a separate state of Pakhtunistan in the erstwhile NWFP and strong demands for provincial autonomy — even Sindhu Desh — in Sindh. Therefore, in order to make Pakistan a powerful country we need to re-imagine Pakistan as a federation of strong units rather than a strong centre with weak units. The 18th Amendment was a move in the right direction, empowering the Senate should be another, so that the next time when the Chairman of the Senate is elected no one asks: ‘What does the Senate Chairman actually do?’