Selection of two ECP members: Will Imran, Shehbaz bury the hatchet?

ISLAMABAD: The mandatory process to fill vacancies for members of the Election Commission of Pakistan (ECP), due on July 25, is yet to kick off between Prime Minister Imran Khan and leader of the opposition in the National Assembly Shehbaz Sharif.

Justice (R) Altaf Ibrahim Qureshi, who represents Punjab as the member in the ECP, and Justice (R) Ms Irshad Qaiser from Khyber Pakhtunkhwa (KP), will retire soon on completing their five-year tenures.

In 2019, the process of appointing two ECP members had been stalled for several months due to the lack of consensus between the two principal parties. Both sides had insisted on nominating their respective choices. Additionally, the prime minister had stubbornly refused to have direct contact with the opposition leader and they had communicated with each other through letters written by their aides.

Compared to these nominations, the process of choosing the incumbent Chief Election Commissioner (CEC), Sikandar Sultan Raja, was relatively smooth and completed without much hassle as a consensus on his name had emerged. The ECP is keen to have a result-oriented discussion by the two main parties to ensure timely appointments, an official told The News. The Commission has written a letter to the parliamentary affairs ministry highlighting the importance of filling the vacancies before they occur. Given the relations between the prime minister and the opposition leader, which are even more tense than in the past, it doesn’t appear that an agreement on the new appointees will be arrived at soon. Direct consultations between the two are still ruled out, and the maximum they could do is to exchange names through letters to be written by their assistants.

Crucially, the two incumbent ECP members as well as the new nominees will be holding the positions when the next general elections are held. The ECP, led by Sikandar Sultan Raja, has been different from most past election commissions, which have traditionally been docile, compliant and partial. However, the present ECP unambiguously demonstrated its independence during the recent by-elections and took decisions which were generally lauded by the public. It took stands on the open ballot versus a secret vote in the Senate elections that were disapproved by the government.

In view of the newfound independence of the organisation, the ECP members have a very important role as they adjudicate several important matters. These include the disqualification of lawmakers raised before them by opposing political parties.

There was a time when retired superior court judges used to be picked as the CEC and ECP members. However, after several decades, this practice was discontinued the last time when two ECP members who were senior lawyers were selected.

As per the Supreme Court judgment in the Chaudhry Nisar Ali Khan vs Federation case-- which had struck down the appointment of Admiral (retd) Fasih Bokhari as the NAB chairman-- it was held that the consultation had to be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play”. In order to establish that a consultation was meaningful and purposive, it “should manifestly be shown that a serious, sincere and genuine effort was made towards evolving a consensus; the first priority in any consultation had to be directed towards evolving a consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate; and consultation practically amounted to an effort towards meeting of minds.”

Under the Constitution, it is the sole prerogative of the prime minister and the opposition leader to make ECP appointments through consultation. They are empowered to exercise this authority with the involvement of the bipartisan parliamentary committee (PC) to the exclusion of the consent or consultations with any parliamentary player or individual.

Article 213 says the prime minister will in consultation with the opposition leader forward three names for the appointment of an ECP member to the PC for hearing and confirmation of any one of them.

The PC to be constituted by the speaker will comprise 50pc members each from the treasury benches and opposition parties based on their parliamentary strength 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 PC for consideration, which may confirm any one name. The PC will consist of twelve members out of which one-third will be from the Senate.

According to Article 218, a person who has been a high court judge or a senior civil servant or is a technocrat not more than 65 years of age qualifies to be appointed as ECP member. Such a civil servant must have served for at least 20 years under the federal or a provincial government and have retired in grade-22 or above. A technocrat must be the holder of a degree requiring conclusion of at least 16 years of education recognized by the Higher Education Commission and have at least 20 years of experience, including a record of achievements at the national or international level.

The PC headed by Federal Minister Dr. Shireen Mazari includes cabinet members Ali Muhammad Khan, Pervez Khattak, Muhammad Azam Khan Swati and Syed Fakhar Imam, and opposition representatives Raja Pervaiz Ashraf, Dr. Sikandar Mandhro, Dr. Nisar Ahmad Cheema, Ms Shaza Fatima Khawaja and Ms Shahida Akhtar Ali besides independent senator Naseebullah Bazai, who usually stands with the government when it comes to voting.