Discussion of CEC is as per SC Ruling of 2013


Kanwar Muhammad Dilshad
IN a bid to defending its decision of unilaterally nominating two members of the Election Commission of Pakistan (ECP), the Government on Saturday claimed that President Dr Arif Alvi had made the appointments in line with the Constitution and on the recommendations of the institutions concerned. The CEC had refused to administer the oath of office to the ECP members on Friday, saying their appointment was against the Constitution. The two members, who were appointed by President Alvi on Aug 22, arrived at the ECP headquarters to formally assume charge, but returned dismayed. The CEC’s refusal to administer the oath of office to the government-appointed members had been termed “unconstitutional” by Law Minister Barrister Farogh Naseem, who argued that the CEC had no authority to examine validity of government notifications. President Alvi had notified the appointment of Khalid Mehmood Siddiqui and Munir Ahmad Kakar as ECP members from Sindh and Balochistan, respectively, after months-long deadlock between the government and the opposition over the issue.
The CEC in a letter sent to the Ministry of Parliamentary Affairs observed that the ECP members’ appointment was not in accordance with the relevant articles of the Constitution. The CEC had cited a judgement rendered by a five-member bench of the Supreme Court in 2013, holding that the President did not enjoy discretionary power in appointment of the CEC and ECP members. He made it clear that he would not administer oath to the ‘unconstitutionally’ appointed members. The Parliamentary Affairs Minister said President Alvi had appointed the two ECP members in a “just and fair” manner and as an “impartial umpire” after failure of Prime Minister Imran Khan and Opposition Leader Shahbaz Sharif to reach a consensus on the names. He said even the Parliamentary Committee on appointment of the CEC and ECP members had failed to break the deadlock.
Mr Swati claimed that his Ministry had informed National Assembly Speaker Asad Qaiser about the deadlock and also sought opinion from the Law Ministry before forwarding a report to the President with recommendations in the light of which the President made the decision. The minister said there was no precedent under which the government could refer the matter to the Chief Justice of Pakistan for a final decision under Article 186 of the Constitution. Mr Swati said the government could not leave any institution “dysfunctional” under Article 215 of the Constitution. He said the ECP had been incomplete at a time when the local government elections in Punjab and Khyber Pakhtunkhwa were about to be held. The Minister said he had received a letter from the CEC over the issue and said there had been no such precedent that such a letter had been written by the CEC.
PPP’s Parliamentary Leader in the Senate Sherry Rehman said the procedure for ECP members’ appointment had clearly been defined in the Constitution and the government had violated the document. She said the government had bypassed the Opposition Leader and the Parliamentary Committee on appointment of the ECP members. She said the ECP had upheld the Constitution’s supremacy by the decision. The two gentlemen who arrived at the ECP headquarters on Friday hoping to be sworn in as members of the Election Commission should have known better. With all due respect to his office, President Arif Alvi should have been better advised and more careful in his reading of the law before nominating the two to ECP vacancies a day earlier.
Prior to that, Prime Minister Imran Khan and his government must have realised the unconstitutional nature of their step; so why did they choose to ignore both law and procedure, and try and push through candidates of their choice? Such a move will only tarnish the reputation of the electoral body that must be seen as fair and independent at all times. In the end, they left the Chief Election Commissioner, retired Justice Sardar Mohammad Raza, with only one option: refusal to administer the oath of office to the ‘new appointees’. The CEC quoted a 2013 Supreme Court ruling, which reminds the President that he cannot appoint ECP members — or for that matter the CEC — at his discretion (and without fulfilling certain criteria).In a letter to the Ministry of Parliamentary Affairs, Justice Raza “made it clear that he would not administer oath to the ‘unconstitutionally’ appointed members”. There is no ambiguity in the procedure for the selection of an ECP member. After two members retired in January, under the Constitution, the process of replacing them must begin with consultations between the Prime Minister and Leader of the Opposition in the National Assembly. That condition was never met amid criticism by both sides.
This spoke volumes for their inability to rise above petty issues and fulfil national obligations. Justifiably, much of the blame was placed at the government’s door as it is the Prime Minister’s responsibility to initiate consultations with the Leader of the Opposition. This was not done, even though the National Assembly had done its job of constituting a Parliamentary Committee as required by the law. Under the law, the Prime Minister and the Opposition Leader are supposed to discuss and then send three names they have agreed upon to the committee for further action. In case there is no agreement, the Prime Minister and the Opposition Leader must send three names each to the Parliamentary Committee.
Notwithstanding parliament’s long experience of such joint deliberations, the scheme was perhaps considered too cumbersome by a ‘new’ party that has made little effort to hide its contempt for past collective endeavours to improve the democratic system. Instead, it chose the deceptively easy path of arbitrary nomination, and in the bargain, opened another front with the opposition. The alarming part is that the government has done all this knowingly. It appears to be purposefully moving towards a showdown with the opposition over certain provisions of the Constitution. This is a dangerous course and must be avoided. It is my considered opinion that the two nominated members of the Election Commission of Pakistan do not fulfil the certain criteria of the technocrats as per judgment of the Supreme Court of Pakistan in 1985 in the constitutional petition of Waseem Sajjad vs Federation.
—The writer is former Federal Secretary Election Commission of Pakistan and currently Chairman National Democratic Foundation.