Appointment of 2 ECP members

Constitution silent how to break deadlock

By Tariq Butt

ISLAMABAD: The Constitution is silent how to break the deadlock if a bipartisan parliamentary committee fails to confirm unanimously or by majority the two new members of the Election Commission of Pakistan (ECP).

“The Constitution offers no solution if there is an impasse in case the parliamentary committee is unable to select and confirm the ECP members from the lists given by the prime minister and the leader of the opposition in the National Assembly,” prominent constitutional expert Omar Sajjad explained to The News when approached.

He said when the Constitution (Article 213) gives no answer, the matter may go to the Supreme Court for interpretation and clarification if a gridlock hits the parliamentary committee.

The ECP members from Sindh and Balochistan-- Abdul Ghaffar Soomro and retired Justice Shakeel Baloch -- retired on January 26 this year and their replacements should have been appointed within forty-five days by March 12.

In a letter to NA Speaker Asad Qaisar, opposition leader Shahbaz Sharif has stated that Prime Minister Imran Khan wants the appointment of the ECP members to be made without fulfilling mandatory constitutional requirement of consultations with him. He received a notice on March 11, seeking to propose three names each for the ECP members and said the referral of such names to the parliamentary committee is a violation of Clause 2A of Article 213 as the premier has failed to consult him on the issue. Such a meeting cannot be called till the required consultative process as enshrined in the Constitution has been completed, he opined.

Answering a question, Omar Sajjad said that the first step listed in Article 213 is the consultations between the prime minister and opposition leader. “Its skipping may end up in a court of law because the Constitution clearly prescribes it.”

The expert said if the premier wants to avoid direct consultations with the opposition leader for any reason, he may do so indirectly through one of his ministers or aides.

Article 213 says the prime minister shall, in consultation with the opposition leader, forward three names for appointment of chief election commissioner (CEC) or every ECP member to a parliamentary committee for hearing and confirmation of any one person for every vacancy. This is the first step.

The second step arises when there is no consensus between the premier and opposition leader and then each forwards separate lists to the parliamentary committee for consideration which may confirm any one name.

In both cases, the names are to go to the parliamentary committee for confirmation. The constitutional provision doesn’t say what will happen if the forum fails to confirm any names. The body has to take decisions either unanimously or by majority but there will be standoff when the members are equally divided in favour or against any name.

Given the animosity existing between the prime minister and opposition leader, Imran Khan doesn’t want consultations with him for appointment of the ECP members. He will be forwarding his choice names for the vacancies and Shahbaz Sharif has been asked to send his preferences to the parliamentary committee.

Omar Sajjad said that in the case of judges’ appointment, the Supreme Court once held that the consultations should be meaningful, result-oriented and substantive.

Considering the prevailing tussle between the government and opposition, there is every chance of a standoff in the 12-member parliamentary committee. No side has numerical strength to impose its decision on the other as the forum has equal representation from the government and the treasury. As required by the Constitution, it has eight members of the National Assembly and four senators.

The six members of the Pakistan Tehreek-e-Insaf (PTI) are Dr Shireen Mazari, who heads the parliamentary committee, Ali Muhammad Khan, Syed Fakhar Imam, Muhammad Mian Soomro, and Azam Swati, and independent Senator Naseebullah Bazai from Balochistan.

On the other hand, the opposition’s six members include Rana Sanullah, Mushahidullah Khan and Murtaza Javed Abbasi of the Pakistan Muslim League-Nawaz; Syed Khurshid Shah and Dr Sikandar Mandhro of the Pakistan People’s Party and Shahida Akhtar Ali of the Mutahidda Majlis-e-Amal.

The parliamentary committee has been constituted by the Speaker taking 50 percent members from the treasury benches and 50 percent from the opposition parties, based on their strength in Parliament. These members were nominated by their respective parliamentary leaders.

Article 218 cited by the opposition leader in its letter says for the purpose of election to both Houses of Parliament, provincial assemblies and to such other public offices as may be specified by law, a permanent ECP shall be constituted. The ECP shall consist of the CEC who shall be the chairman of the ECP, and four members, one from each province, each of whom shall be a person who has been a judge of a high court or has been a senior civil servant or is a technocrat and is not more than 65 years of age, to be appointed by the president in the manner provided in Article 213.

It shall be the duty of the ECP to organise and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.