ISLAMABAD: Prime Minister Nawaz Sharif and Leader of the Opposition in the National Assembly Khurshid Ahmed Shah, the two constitutional consultees in the appointment of chief election commissioner (CEC), may land themselves in trouble if the post is not filled by Dec 1.

What lies in store for them will be known when the Supreme Court takes up on Dec 1 the matter of appointment of permanent CEC, but Chief Justice Nasirul Mulk’s Monday’s decision to withdraw on Dec 5 Justice Anwar Zaheer Jamali of the apex court, who is officiating as CEC, indicates that the court means business.

The decision has been communicated to the secretary of the Election Commission of Pakistan.

This is the fourth time the court has extended the deadline for the appointment, although a three-judge bench hearing the matter was not pleased with the government’s dilly delaying.

The first deadline of Oct 28 was set by the court on Oct 14 during the hearing of a case relating to the absence of local bodies in the country over the past nine years.

On Monday, Attorney General Salman Aslam Butt informed the court that both the leaders of the house and the opposition had reached a consensus on a name for the post of CEC. It was endorsed also by major political parties, but because of the objection raised by one party the nominee had declined to accept the offer.

Govt, opposition will be in trouble if CEC post not filled by Dec 1

He said serious efforts were still being made to find a suitable person as early as possible, adding that the leader of opposition was abroad and planned to return in two to three days.

The names considered for the CEC’s post included former chief justice Tassaduq Hussain Jillani, former acting chief justice Rana Bhagwandas and retired Justice Nasir Aslam Zahid, but the situation became complex when Justice Bhag­wandas and Justice Jillani declined to accept the post.

The bench rejected the attorney general’s explanation and said it had made it clear at the last hearing that the court would withdraw its judge if the CEC was not appointed by Monday. The court said it would consider issuing notices to the prime minister and the leader of opposition.

Legal experts believe that the notice, if issued, will be under the Contempt of Court Ordinance 2003.

The court’s decision evoked immediate approval by the legal community.

Supreme Court Bar Association’s former president Kamran Murtaza regretted that it had become the government’s habit to take the apex court’s orders lightly, thereby creating a negative image of the court among people. The court should get its orders implemented at all cost. Otherwise, he added, people would think that it was inclined towards the present PML-N government.

“The Supreme Court seems running out of patience,” former law minister Khalid Anwar said, adding that the government and the leader of opposition now had the last opportunity to comply with the court’s directive.

But Advocate Dr Mohammad Basit was of the opinion that under Article 217 of the Constitution, the chief justice had no authority to permanently withdraw a judge from the ECP.

“Even if there is a default on part of the government, it is not a valid or reasonable ground for the chief justice to exercise his jurisdiction in view of government’s delay in evaluating nomination for the CEC. The duty cast by the Constitution cannot be abdicated,” he emphasised.

Currently, Justice Anwar Jamali is serving as acting CEC. He replaced the current chief justice on July 23 to become the third acting CEC in less than a year.

Before him, former chief justice Tassaduq Jillani and Chief Justice Nasirul Mulk had briefly served as acting CEC after Fakhruddin G. Ebrahim resigned on July 30 last year as the 13th CEC. His resignation came soon after the Supreme Court verdict ordering an amendment to the schedule for presidential elections on a petition by a PML-N legislator without hearing other parties – a decision Mr Ebrahim considered an encroachment on the ECP’s domain.

Under Article 213(2A) of the Constitution, the prime minister is required to forward three names to a parliamentary committee for appointment as CEC after consultations with the leader of opposition. The committee confirms one of the names.

Published in Dawn, November 25th , 2014