Outgoing Chief Election Commissioner Justice Sardar Muhammad Raza (retd) has officially approached the government for the appointment of new CEC following his retirement on December 6 while cautioning that the Election Commission of Pakistan (ECP) would be left dysfunctional if a CEC is not at the helm after December 6.

In a letter addressed to the Ministry of Parliamentary Affairs, the CEC has asked the government to take steps for the appointment of new CEC keeping in view that the Commission would constitutionally cease to function beyond December 6, Business Recorder has learnt.

In case the deadlock between the government and opposition over the appointment of the CEC persists, the Supreme Court of Pakistan is constitutionally empowered to appoint an acting CEC after the incumbent CEC retires on December 6.

The 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 ECP Kanwar Dilshad said that 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 consists 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 6, which means that the ECP will have four members and would be in position to take decisions even if the CEC retires, he said.

The CEC and ECP members are appointed with consensus between the Leader of the House and Leader of the Opposition in National Assembly.

The 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."

The Article (2B) reads, "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.

Like CEC, the appointment of two ECP members also seems unlikely by December 6.

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 the relevant constitutional provisions, the new ECP members are required to be appointed within 45 days.

On August 22 this year, President Arif Alvi appointed Khalid Mahmood Siddiqui from Sindh and Munir Ahmad Kakar from Balochistan as ECP members but CEC Raza refused to administer oath to them, citing violation of the Constitution in the appointment of these two members.

On October 14, 2019, the Islamabad High Court (IHC) had directed that the issue of the two ECP members' appointment be sent to the Parliament. During the proceedings of a related case, the court had observed that 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 the IHC against the appointment of the two ECP members. The CEC in his written reply to the IHC stated that they had been appointed by the President without following the procedure laid down in the clauses 2A and 2B of the Article 213 of the Constitution.

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.