After the failure of the parliamentary committee to reach a consensus over the appointment of two members of the Election Commission of Pakistan (ECP), the opposition parties can approach the Supreme Court against the government's decision to unilaterally decide on the appointments. This was the consensus of an anecdotal survey of legal experts by Business Recorder.
President Arif Alvi approved the appointments of Khalid Mahmood Siddiqui and Munir Ahmed Kakar as ECP members from Sindh and Balochistan following which their respective appointments have already been notified by the Ministry of Parliamentary Affairs.
Two major opposition parties, Pakistan Muslim League Nawaz (PML-N) and Pakistan People's Party (PPP) have slammed this move as illegal saying they were not consulted which is violative of the constitution. Chief Election Commissioner Justice (r) Sardar Muhammad Raza has refused to administer oath to the two newly appointed ECP members saying their appointments are in violation of Article 213.
Discussions with legal and electoral experts suggest that the opposition parties have the right to approach SC against the appointments of the two ECP members and for the interpretation of Article 213 of the constitution. Speaking to Business Recorder, senior advocate and former governor Punjab Rafique Rajwana stated that there is no provision in the constitution which provides that if the matter regarding appointment of ECP members is not resolved in the relevant parliamentary committee then it would be referred to the SC for adjudication. "But the opposition parties can approach the apex court for interpretation of Article 213 of the constitution," he said.
Article 213 reads, "(2 A) The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.
(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders: Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name."
In the light of relevant constitutional provisions, the criteria for the appointment of the CEC and the four ECP members (one member is appointed from each province) is the same and the CEC and ECP members are appointed for five years with half of the members (two out of four) tend to retire after 2.5 years.
Former secretary ECP Kanwar Dilshad said the parliamentary committee is the final forum for reaching a consensus on the appointment of the CEC and the ECP members and the SC has no role in this regard. "But in this particular matter, the opposition parties can move the SC against the appointment of the two ECP members since the President has no authority to appoint an ECP member. The President can only accord formal approval to the appointment of any ECP member whose nomination is finalised by the parliamentary committee. Constitutionally, the CEC has done the right thing by refusing to administer oath to the two members appointed by the president because these appointments are in violation of Article 213 and Article 218. If deadlock persists regarding the appointment of ECP members, the parliamentary committee has to continue consultations till consensus is reached," he told Business Recorder.
Article 218 (2) (b) reads, "The Election Commission shall consist of (b) four members, one from each Province, each of whom shall be a person who has been a judge of a High Court or has been a judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213."
Advocate Tariq Khokhar said that the matter involving the appointments of the two ECP members by the president can be referred to the SC "not under the constitutional provisions, but under various judgments of the apex court."
In January this year, two ECP members Abdul Ghaffar Soomro from Sindh and Shakeel Baloch from Balochistan retired following the completion of their five-year respective terms. In the light of relevant constitutional provisions, the new ECP members were required to be appointed within 45 days.
However, consensus failed to be reached between Prime Minister Imran Khan and Leader of the Opposition in National Assembly Shahbaz Sharif over the appointment of the two ECP members following which the matter landed in the related parliamentary committee. Despite considering several names, the parliamentary committee too failed to reach a consensus on the appointment of the two ECP members. After almost eight months, the president approved the appointments of Siddiqui and Kakar as ECP members from Sindh and Balochistan respectively.
"-the President of the Islamic Republic of Pakistan is pleased to appoint the following persons as Members of the Election Commission of Pakistan," read a press release from Ministry of Parliamentary Affairs, to notify the appointments of Siddiqui and Kakar, issued earlier on Thursday.
Chairman PML-N Raja Zafar-ul-Haq said the opposition reserves the right to move the apex court against the appointment of the two ECP members. "But as the CEC has already refused to administer oath to two ECP members, we can wait and see how the situation unfolds. If required, the matter would be discussed at the relevant party forums and with other opposition parties before taking any step," he told Business Recorder.
Senior PPP stalwart and Leader of the Opposition in National Assembly Khursheed Shah said, the PPP would hold internal consultations and with other opposition parties before taking a decision on moving the court. "We have the option to move SC against the appointment of ECP members."
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