Situationer: What happens when caretaker CM or PM dies?

KARACHI: The process to appoint a new caretaker chief minister for Khyber Pakhtunkhwa could lead to a recourse to the former chief minister and leader of the opposition in KP but is likely to eventually end up with the ECP, say legal and constitutional experts.

The sudden death of Khyber Pakhtunkhwa’s caretaker chief minister Mohammad Azam Khan on Saturday has threatened to trigger yet another constitutional crisis: how to appoint a new caretaker chief minister for KP?

While Caretaker Federal Minister for Information and Broadcasting Murtaza Solangi has said that the procedure given in the constitution will be followed, legal experts feel it’s not as simple a matter. For one, the constitution is largely silent on what happens if a caretaker CM (or PM) dies.

Telling The News that it is “one of the gaps in our constitution that it does not provide a legal procedure for filling a vacancy of either caretaker prime minister or chief minister”, PILDAT President Ahmed Bilal Mehboob is of the the opinion that “one immediate common sense solution that comes to mind is to call upon the former chief minister and former leader of the opposition in the now-dissolved KP Assembly to reach a consensus or suggest names which may then be considered by a parliamentary committee and if they also fail to agree then the ECP picks a caretaker CM out of the proposed names”. Another option, says Mehboob, is that the “provincial governor nominates one of the caretaker ministers as the new caretaker CM.”

This is a subject that seems to be leading to a myriad of answers, almost all of which somehow end at the ECP. Talking to Geo News on Saturday, former ECP secretary Kanwar Dilshad said that “Till the new caretaker chief minister is announced, the governor has the powers to run the province in place of the chief minister. The Senate will decide [the new caretaker CM]; the leader of the house and the leader of the opposition in the Senate will come up with a name. If they can’t reach a consensus on one name then this goes to the ECP. All this is supposed to take a week, and during that time the governor runs the business of the province”.

Former attorney general Ashtar Ausaf Ali also spoke with Geo News on Saturday and agreed that “a constitutional situation has been created about which the constitution does not have a direct answer.” Ali is of the opinion that eventually “we will need to look to the ECP for this. The ECP is a constitutional entity and has the mandate of conducting elections. In my opinion, this will go to the ECP.”

Supreme Court advocate Basil Nabi Malik tells The News that there may be a legal basis to refer to the former chief minister and leader of the opposition in KP, lending credence to Mehboob’s first option. Malik says that “in terms of Article 224 of the constitution, the caretaker chief minister is to be appointed by the governor in consultation with the chief minister and leader of the opposition of the ‘outgoing provincial assembly’. Although the said term may be interpreted strictly to mean an assembly still in session, that may not be the reasonable interpretation to take.”

Malik says that it could be that the term ‘outgoing provincial assembly’ has been specifically used “so as to remove the time-bound restrictions that would result from an existing assembly having to make the appointment during its tenure”. That said, says Malik, Article 224A(1) specifies that an agreement is to be reached within three days of the dissolution of the National Assembly. According to him, a way out of this could be that “considering that such agreement had in fact been reached initially, it could be argued that the said time period resets with the restart of the appointment process upon the death of the caretaker chief minister”.

Another interesting situation offered by Malik is that since Article 224A also alludes to “the possibility of the consultation process extending beyond the life of the assembly” and seems to “envision the incumbent chief minister continuing in office even after the dissolution of the provincial assembly and till the appointment of the caretaker chief minister -- a combined reading of the provisions may offer an interpretation which advocates the position that the chief minister of the outgoing assembly would stand revived to office till the appointment of the new caretaker chief minister”.

How does the constitution treat this dilemma? Barrister Ali Tahir tells The News that “the constitution presumes the mortality of constitutional office-holders but does not hypothesize the perishability of human life for the prime minister and the chief ministers and is silent with regard to what happens if a prime minister or chief minister dies in office”. Tahir feels that since the deceased chief minister was a caretaker and no assembly exists to elect a new chief minister in Khyber Pakhtunkhwa, the provision of Articles 224 and 224(A) would have to be followed “and an exercise would have to be repeated wherein the new caretaker chief minister would have to be appointed by the governor in consultation with the chief minister and the leader of the opposition from the outgoing provincial assembly”.

Tahir lays out the complete process thus: if the ex chief minister and leader of the opposition cannot decide on a name in three days, “then the speaker of the now dissolved assembly will make a parliamentary committee consisting of six members, three nominated by the ex-chief minister and three nominated by the ex leader of the opposition, and they will both nominate two names each to the committee. The committee has three days after which the matter will be sent to the ECP which shall decide the name of the new caretaker chief minister within two days. This is the constitutional process which must be followed.”

In all this, Ahmed Bilal Mehboob offers a word of caution by the reminder that “these solutions are not provided for in the constitution and therefore cannot be arbitrarily employed. The only way out is to file a reference before the Supreme Court to either endorse one of the solutions which the caretaker federal government may propose or give a solution of its own. I feel that recourse to the Supreme Court is inescapable at this stage.”