Appointments on constitutional positions have become highly politicised as the trust deficit widens between the treasury and the opposition benches. An anecdotal survey carried out by Business Recorder revealed that constitutional positions requiring meaningful consultation between the leader of the House and the opposition, are either pending or being challenged at the relevant fora.
The Election Commission of Pakistan (ECP) and federal government locked horns after the Chief Election Commissioner (CEC) Sardar Muhammad Raza refused to administer oath to Khalid Mahmood Siddiqui from Sindh and Munir Ahmad Kakar from Balochistan, citing violation of constitution in the appointments of these two members by President Arif Alvi on 22nd Aug.
The opposition parties hailed the CEC's decision not to administer oath to the two ECP members and strongly criticised the government for not consulting with the opposition on these two appointments. Barrister Jahangir Khan Jadoon has moved Islamabad High Court (IHC) against the appointment of the two ECP members. The CEC in his written reply to IHC stated that they had been appointed by the president without following the procedure laid down in clauses 2A and 2B of Article 213 of the constitution.
The federal capital is rife with reports that the govt is contemplating moving a reference against the CEC while the opposition parties have already started crying foul against the reported move. In this context, it is quite unlikely that Prime Minister Imran Khan and the Leader of the Opposition in NA Shahbaz Sharif would be able to reach any consensus over the appointment of not only the two ECP members but also the CEC after the retirement of Sardar Raza in the first week of December.
A senior PTI lawmaker, requesting anonymity, told Business Recorder that following recent episode of hostility over the appointment of two ECP members, the government would want a more 'cooperative' CEC whereas, he said, the opposition would prefer a CEC like Sardar Raza who took a stand against the government in the members' appointment row.
"This episode of conflict has made the fault lines between the government and opposition more glaring. It has become clear who would prefer whom. For the government, anyone like the incumbent CEC is certainly not an option. For the opposition, anyone like the incumbent CEC is very much an option," the source remarked.
The process to appoint CEC starts weeks before the retirement of the outgoing CEC but there has been no contact between PM Khan and Shahbaz Sharif over the appointment of new CEC after Sardar Raza's impending retirement, the insider 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 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) to retire after 2.5 years.
The Article 215 (1) reads, "Term of office of Commissioner (and members)-(1) The Commissioner 2 (and a member) shall, subject to this Article, hold office for a term of 3(five) years from the day he enters upon his office: Provided that two of the members shall retire after the expiration of first two and a half years and two shall retire after the expiration of the next two and a half years."
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 accordance with relevant constitutional provisions, the new ECP members were required to be appointed within 45 days.
However, consensus failed to be reached between the PM and leader of the opposition in NA 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 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," reads a press release from Ministry of Parliamentary Affairs, to notify the appointments of Siddiqui and Kakar, issued earlier.
Speaking to Business Recorder, former secretary ECP Kanwar Dilshad said the formation of ECP remains unaffected presently but the ECP would be incomplete after the CEC's retirement. "Constitutionally, the decisions in ECP are taken by majority vote by five officials; a CEC and four members. This means, the ECP needs at least three officials to complete its formation. In case new CEC is not appointed after the retirement of the incumbent CEC, the ECP would be left with only two members and it would remain incomplete."
Apart from CEC, the government is facing challenges in appointing its candidates on other constitutional positions. On June 13 this year, President Arif Alvi withdrew the notification of the appointment of Federal tax Ombudsman (FTO) Mushtaq Sukhera on the grounds that the said notification was unlawful and issued in violation of rules by the former Pakistan Muslim League Nawaz (PML-N) government. Sukhera moved IHC against the president's decision and the case is pending since then.
Reports also suggest that the government wants to have the Chairperson Competition Commission of Pakistan (CCP) Vadiyya Khalil removed from office. She is serving as CCP chief for the second term since December 2017 under a stay order. National Accountability Bureau (NAB) chairman former Justice Javed Iqbal is another key constitutional position holder who was appointed in October 2017.
Other constitutional posts include Chief Justice and Judges of Federal Shariat Court, Prosecutor General NAB, Federal Ombudsman on Protection Against Harassment of Women and Auditor General of Pakistan. The constitution says that Supreme Judicial Council on receipt of a complaint against any person appointed on the constitutional position can initiate proceedings against him/her. After inquiring the matter, the Supreme Judicial Council reports the matter to the president that the person is incapable of performing duties of his office or has been guilty of misconduct, and then the president may remove him from the office.
The office of the Governor State Bank of Pakistan (SBP) is a statutory post for a period of three years and the incumbent can be removed by the President of Pakistan under laid down procedure in SBP Act 1956.
The Act allows appointment of SBP governor for a period of three years, however, as per procedure the president may remove him if he becomes permanently incapable of performing his duties, or is subject to any of the disqualification specified in subsection specified in subsection (10) of section 10 that requires before taking action under this sub-section, the governor would be given a notice to show cause and an opportunity of being heard. The governor may resign from his office by statement to that effect in writing signed by him and addressed to the federal government.