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November 10, 2019

Azadi March upshot: ECP to become dysfunctional due to key vacancies

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November 10, 2019

ISLAMABAD: The Election Commission of Pakistan (ECP) will become incomplete and dysfunctional in 27 days if a new chief election commissioner (CEC) and two ECP members were not appointed to fill up the existing or certainly occurring vacancies.

“Under the Elections Act, 2017, the ECP must have at least three members, the CEC being also a member, all the time otherwise the electoral body will become totally imperfect and non-operational,” a senior ECP official told The News on condition of anonymity.

He said the ECP would be hit by a grave, unheard of crisis after December 7 when the incumbent CEC Justice Sardar Muhammad Raza retires on completing his term of office, if his replacement was not brought in and the two posts of the ECP members from Sindh and Balochistan, which are lying vacant for past the ten months, were not filled up.

The official referred to Section 3 of the Elections Act and said that the ECP would be incapacitated to take any decision if these nominations were not made by December 7.

This section says if upon any matter requiring the ECP decision there is difference of opinion amongst its members, the opinion of the majority shall prevail and the decision shall be expressed in terms of the opinion of the majority: Provided that where the members attending the proceedings are four, and they are equally divided in their opinion; or where the members in attendance are three and there is difference of opinion amongst them; the matter shall be placed for decision before the full ECP, comprising all its members [five, including the CEC].

After December 7, the ECP will be left with only two members from Punjab and Khyber Pakhtunkhwa (KP).

The section further says in the performance of its functions, and duties and exercise of its powers, the ECP shall regulate its own procedure. It may exercise its powers and perform its functions even if the office of any ECP member is vacant or any of them is, for any reason, unable to attend its proceedings, and the decision of the majority of the members shall have the effect of its decision.

The official said that after December 7, it would be impossible for the ECP to hold any by-election and that it would be impractical to even update [under Article 219 of the Constitution], including new entries and deletion of deceased voters, electoral rolls by the district election officers.

To save the ECP from becoming redundant, Islamabad High Court (IHC) Chief Justice Athar Minallah, while declaring the appointment of two ECP members by President Arif Alvi unconstitutional, ordered five days ago: “Resolve this matter before December 7 and tell the court”. He had also directed that the matter be solved by parliament.

The top judge further ruled that National Assembly Speaker Asad Qaisar and Senate Chairman Sadiq Sanjrani should resolve the issue through consultations. As per his previous direction, the chairman and speaker had held three meetings, but according to Additional Attorney General Tariq Mehmood Khokhar’s stand taken in the IHC, no progress could be made due to deteriorating law and order situation because of the Azadi March. The lawyer had sought four weeks to resolve the matter. However, the judge directed him to let him know the progress by December 5.

On Aug 22, the president appointed Khalid Mehmood Siddiqui from Sindh and Munir Kakar from Balochistan against two vacant posts previously held by Abdul Ghaffar Soomro and Shakeel Baloch. However, the CEC had refused to administer the oath to both members-designate on the ground that their appointments were not in accordance with the Constitution.

Article 217 deals with the coming in of an acting CEC. It says at any time when the office of the CEC is vacant, or the CEC is absent or is unable to perform the functions of his office due to any other cause, the most senior member in age of the members’ act as CEC.

The fundamental reason behind non-appointment of the two ECP members with consensus is the perennial tensions and lack of even a minor working relationship between two constitutional consultees – Prime Minister Imran Khan and leader of the opposition in the National Assembly Shahbaz Sharif.

Despite insistence of the opposition leader, the premier consistently refused to meet him for consultations. They inconsequentially exchanged their nominations through at least three letters. The matter was then sent for decision to the bipartisan parliamentary party, which has equal representation of the ruling alliance and opposition parties. But their confrontation resulted in a deadlock in this panel as well. Ignoring the opposition leader’s nominations and the deliberations of the parliamentary forum, the president notified two ECP members, who had been recommended by the premier. This aggravated the crisis and the matter finally landed in the IHC.

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.

The constitutional procedure, which has been 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.

Only the prime minister and the opposition leader are empowered, under the Constitution, to break the impasse as they have the exclusive role to make the selection with the exclusion of any ruling party component or opposition party.

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