Grim ECP impasse

The issue of the reconstitution of the Election Commission of Pakistan (ECP) has hit an impasse. Chief Election Commissioner (CEC) former Justice Sardar Mohammad Raza on August 23, 2019 refused to administer the oath of office to the two newly-appointed members of the ECP, arguing that their appointment was not according to the Constitution. Khalid Mehmood Siddiqui and Munir Ahmad Kakar had been appointed by President Dr Arif Alvi as members ECP from Sindh and Balochistan, respectively, a day earlier, but when they arrived at the ECP headquarters to assume charge, the secretary conveyed to them the CEC's view, much to the two aspirants' dismay. The secretary also informed them that a communication on the issue had been sent to the Ministry of Parliamentary Affairs. In his letter to the ministry, the CEC observed that the appointment of the two ECP members was not in accordance with the relevant Articles of the Constitution. He also cited a judgement of the Supreme Court from 2013 that held the President does not enjoy any discretionary power in appointment of the CEC or members of the ECP. The development sparked off a round of government and opposition responses along expected lines. Law Minister Farogh Naseem argued the CEC's refusal to administer the oath was itself unconstitutional since the CEC had no authority to examine the validity of government notifications. On the other hand, the Pakistan People's Party (PPP) welcomed the CEC's decision, saying the ECP had set an example by rejecting the 'unconstitutional' move of the Pakistan Tehreek-i-Insaaf (PTI) government. The PPP's parliamentary leader in the Senate Sherry Rehman said the procedure for appointment of ECP members had been clearly defined in the Constitution and the government had violated these provisions. To prove the point, she said that the government had bypassed the leader of the opposition and the parliamentary committee on such appointments. She advised the government to respect the Constitution, not try to run the government through presidential ordinances and notifications, and review its dictatorial approach. Former chairman Senate Raza Rabbani said the manner in which the two members were appointed was a clear violation of Articles 213 and 218 of the Constitution, an attack on parliament from within (since under Article 50, the President is part of parliament), and a mala fide violation of the 18th Amendment. He went on to point out that the constitutional requirement of filling such vacancies within 45 days had also been violated.
The background to this latest conundrum is that when the two members Abdul Ghaffar Soomro and former Justice Shakeel Baloch from Sindh and Balochistan respectively retired in January 2019, the path dictated by the Constitution that these vacancies be filled within 45 days through a process of consultation between the prime minister and the leader of the opposition was not followed. Prime Minister Imran Khan held no face-to-face meetings with leader of the opposition Shahbaz Sharif to attempt to reconcile the suggested names put forward by the treasury and opposition. Instead, he opted for, and was replied in the same measure, of putting forward names through written communications (including a later infructuous 'notification' by a spokesperson for the Foreign Office!). Failing to meet or reconcile their different lists of names, the two sides sent their respective suggestions to the parliamentary committee as enjoined in the Constitution in the event of an impasse. The committee has an equal number of treasury and opposition members but it too failed to effect any outcome. Now the government has unilaterally 'appointed' the two members, achieving only embarrassment for them and itself. The underlying problem is the general state of hostility the government betrays every day towards the opposition. At a time when the Kashmir crisis brought rare unity between both sides for a national cause, the government has again failed to understand, let alone pursue, the proper constitutional path, parliamentary conventions, or the political culture underlying a parliamentary democracy. At the time of writing these lines, a petition challenging the President's appointments to the ECP has been submitted in the Lahore High Court. The country must brace itself therefore for a fresh round of acrimonious exchanges, court battles, and a continuation of the sour atmosphere between the two sides of the political divide. Last but not least, without a consensus on members of a complete ECP, there can be no question of general elections next time round. The government should, in its own as much as the country's and democracy's interest, review its hardline attitude towards the parliamentary opposition and reach out to it where the Constitution and parliamentary convention enjoin it to.