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Justice Raza to retire after 82 days: Will there be deadlock in new CEC’s appointment?

By Tariq Butt
September 14, 2019

ISLAMABAD: With the appointment of two Election Commission of Pakistan (ECP) members stuck in judicial litigation, the most important nomination -- the next chief election commissioner (CEC) -- has to be made as the incumbent, Justice (R) Sardar Muhammad Raza, retires after 82 days on Dec 5.

For both the ruling alliance and opposition parties, the selection of new CEC, who, like his predecessor, will have a five-year term, will be critical as he will supervise the 2023 general elections. Neither side is empowered under the Constitution to impose its choice on the other as the appointment has to be made through consensus or by following the specified, mandatory trajectory.

Legal experts point out that no ECP member can officiate as the acting CEC if none is chosen in place of the retired incumbent. If the vacancy was not filled up before his retirement, a Supreme Court judge will be named as the acting CEC, they say.

They refer to Article 217, which says at any time when the office of CEC is vacant, or the CEC is absent or is unable to perform the functions of his office due to any other cause, a Supreme Court judge nominated by the chief justice of Pakistan will act as CEC.

The constitutional procedure, which was unsuccessfully applied to selection of the ECP members, will also be followed for the appointment of the CEC. The maximum time period, 45 days, will be required to pick up the new CEC after the retirement of the present office holder as is the case with the choice of ECP members.

It is said that when Prime Minister Imran Khan and Leader of the Opposition in the National Assembly, Shahbaz Sharif, have not been able to reach an agreement and the bipartisan parliamentary committee also failed to work out a solution because of political polarisation, the outcome will be no different in the case of nomination of the new CEC. A similar deadlock that has hit the selection of the ECP members, landing the matter in the Islamabad High Court (IHC), will rule supreme in the CEC’s appointment.

Experts say superior courts may, through interpretation of the Constitution, while dealing with the present pleas relating to the two ECP members, with a view to break the current impasse, also provide a way out for the nomination of the CEC in case of a stalemate.

The question is how to proceed further and appoint CEC or ECP members if there is a complete gridlock between the two principal consultees – the prime minister and the opposition leader – and in the parliamentary committee.

Article 213 says the prime minister will, in consultation with the opposition leader, forward three names for appointment of CEC to the parliamentary committee for hearing and confirmation of any one person. The committee to be constituted by the Speaker will comprise fifty percent members each from the treasury and opposition benches, based on their strength in Parliament, to be nominated by the respective parliamentary leaders.

In case there is no consensus between the premier and the opposition leader, each will forward separate lists to the committee for consideration which may confirm any one name. The total strength of the committee will be 12 members out of which one-third will be from the Senate.

When the National Assembly is dissolved and a vacancy occurs in the office of CEC, the total membership of the committee will consist of the members from the Senate. The government plans to remove the present CEC for refusing to administer oath to the two ECP members, nominated by it. It is required to follow the procedure laid down in Article 209, which spells out the mode for removal of superior court judges through the Supreme Judicial (SJC). Article 215 says the CEC or an ECP member will not be removed from office except in the manner prescribed in Article 209 for the ouster of a judge.

The two ECP members, representing Sindh and Balochistan, whose selection has been disputed in the IHC, are senior lawyers. The Constitution allows nomination of a lawyer even as the CEC if the government decided to follow the pattern of the naming of the ECP members from amongst the advocates.

Under Article 213, no person will be appointed to be CEC unless he is, or has been, a Supreme Court judge or is, or has been, a high court judge and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Supreme Court judge.

Article 177(2)(a) says a person will not be appointed a Supreme Court judge unless he has for a period of, or for periods aggregating, not less than five years been a high court judge; or has for a period of, or for periods aggregating, not less than 15 years been a high court advocate.