The Supreme Court is constitutionally empowered to appoint an acting Chief Election Commissioner after the incumbent retires on December 5 in case the deadlock between the government and opposition over the appointment of the CEC persists.
Article 217 of the Constitution of Pakistan reads, "At any time when, a. the office of Commissioner is vacant, or b. the Commissioner is absent or unable to perform the functions of his office due to any other cause, a Judge of the Supreme Court nominated by the Chief Justice of Pakistan shall Act as Commissioner."
Speaking to Business Recorder, former secretary Election Commission of Pakistan (ECP) Kanwar Dilshad said the ECP would remain functional if Chief Justice of Pakistan (CJP) Asif Saeed Khosa nominates any serving judge of the SC to act as acting CEC after the CEC's retirement.
"Presently, there are two ECP members and a CEC who is going to retire soon. After his retirement, if an acting CEC is appointed, the ECP would remain functional. Otherwise, it would be dysfunctional."
The ECP, he said, constitutionally takes decisions by a majority vote. "Given that the ECP comprises of a CEC and four members, the decisions of the ECP come into effect with the majority vote of three. Presently, decisions are being taken between the CEC and the two members however once the CEC retires the two remaining members will no longer be able to decide on any matter," he clarified.
The CEC can remain functional if the government and opposition reach a consensus on the appointment of two ECP members by December 5, which means that the ECP will have four members and would be in position to take decisions even if the CEC retires, he said.
Former CJPs Justice Tassaduq Hussain Jillani and Justice Nasirul Mulk performed duties as acting CECs, respectively from August-November 2013 and November 2013-July 2014. Both were senior SC judges when they took charge as the acting CECs.
When Mulk was CJP, he withdrew the services of senior SC judge Anwar Zaheer Jamali as acting CEC (July - December 2014) and directed the government to make a regular appointment for the CEC slot. Jamali later became the CJP.
On December 6, 2014, former Justice Sardar Muhammad Raza took oath as CEC following a consensus by the then government and opposition.
Since August this year, the ECP and federal government are locked in a serious row after CEC Raza refused to administer oath to two ECP members - Khalid Mahmood Siddiqui from Sindh and Munir Ahmad Kakar from Balochistan - citing violation of constitution in the appointment of these two members by President Arif Alvi on August 22, 2019. The opposition parties are siding with the CEC and supporting his stance in this matter.
On October 14, the Islamabad High Court (IHC) had directed that the issue of the two ECP members' appointment be sent to parliament. During the proceedings of a related case, the court had observed the chairman Senate and speaker NA should play their role in resolving the deadlock between the government and the ECP over the two members' appointment. Barrister Jahangir Khan Jadoon moved 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.
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) retiring after 2.5 years.
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 also failed to reach a consensus on appointment of the two ECP members.
In January this year, two ECP members Abdul Ghaffar Soomro from Sindh and Shakeel Baloch from Balochistan had 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.
After almost eight months, the president approved the appointments of Siddiqui and Kakar as ECP members from Sindh and Balochistan respectively in August before the CEC refused to administer oath to the two members citing constitutional violations in their appointment.
Following IHC's observation regarding the appointment of the two ECP members, Chairman Senate Sadiq Sanjrani and Speaker National Assembly Asad Qaiser have recently written letters to Prime Minister Imran Khan and Leader of the Opposition in NA Shahbaz Sharif seeking three names each for the appointment of two ECP members from Sindh and Balochistan.
Copyright Business Recorder, 2019