ISLAMABAD: Opposition parties’ fears over the lack of transparency in the appointment of members to the Election Commission of Pakistan (ECP) seem to be justified, since it appears that both the ruling Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP) had agreed on the final four names before sending separate lists for confirmation by the parliamentary committee.

The appointment of new members became a major thorn in the government’s side earlier this year after the Supreme Court, annoyed by the nonfunctional state of the commission in the absence of new members, had ordered the government to complete the process of appointment by July 28.

Both the prime minister and the leader of the opposition in the National Assembly are constitutionally mandated to jointly recommend 12 names, three for each province, to a parliamentary committee for hearing and confirmation of one name for each province.

However, in case there is no agreement between the two, they can each forward their own lists to the committee, which then simply has to confirm four names: one for each province.

Ever since this procedure was specified under the 18th amendment, ECP members have been appointed twice; in 2011 and then in 2016. However, both times, the requirement of a hearing before the parliamentary committee was not observed and the members’ names simply ratified by the parliamentary body.


PML-N, PPP sent separate lists to parliamentary panel for confirmation despite ‘agreement’ over final four names


But the lists sent to the committee this time around, seen by Dawn, point to a pre-existing understanding between both the PML-N and the PPP over who would be appointed: the names of all four members who were subsequently confirmed by the parliamentary committee — headed by Information Minister Pervaiz Rashid — appeared on both lists.

In both 12-name lists, which contained three names each — in their order of priority — for each province, all four successful nominees were mentioned by the PML-N as their second-choice candidates; while two of the confirmed members were the PPP’s first-choice and two were their second-choice.

Undermining spirit of Constitution

When the names were announced on Jul 25, Pakistan Tehreek-i-Insaf (PTI) chairman Imran Khan took to Twitter to voice his discontent with the decision. He felt slighted that PTI’s recommendation for the KP member was ignored, while the party was also left out of discussion on who would be the member from Punjab.

PTI MNA Dr Arif Alvi told Dawn that the purpose of sending two separate lists to the parliamentary committee was to defeat the spirit of the Constitution, which requires a hearing before the confirmation of any name.

Article 218 of the Constitution specifies that the appointment of ECP members is carried out in the same manner as the appointment of the chief election commissioner (CEC), which is dealt with in Article 213.

A proviso in the article provides for situations where the prime minister and the leader of the opposition are unable to reach a consensus. In such a case, each may send separate lists to the parliamentary committee for consideration, and committee is merely required to confirm any four names from the 12 given in both lists.

Mr Alvi recalled that in the Al-Jihad Trust case 1996, the Supreme Court had held that when the constitution provides for a consultation, it has to be a meaningful process.

When Fakharuddin G. Ebrahim was appointed CEC before the 2013 general elections, the appointment was challenged by Tahirul Qadri on the grounds that the mandatory requirement of a hearing by the parliamentary committee had been circumvented.

The plea, however, was rejected by a Supreme Court bench headed by then-chief justice Iftikhar Mohammad Chaudhry in February 2013. The former CJ had questioned Qadri’s locus standi and asked him how his fundamental rights had been affected that he had come specially from Canada to challenge the matter and seek the reconstitution of the ECP.

“I think if someone was to take the matter to the Supreme Court for interpretation, it would be a worthwhile challenge. Even if the Supreme Court cannot undo the process, it can at least lay down a direction for future hearings. If anything, I believe that a hearing by the parliamentary committee becomes even more essential in case there is no consensus between the leader of the house and leader of the opposition,” Mr Alvi remarked.

Political manoeuvring

That the four names were pre-decided among the PML-N and the PPP was indicated by the fact that the parliamentary committee on appointment of chief election commissioner and ECP members only took 100 minutes to reach a final decision on a matter that the PM and the main opposition leader supposedly couldn’t agree on.

The 12-member committee consisted of five PML-N and three PPP members, but Shireen Mazari, the PTI representative on the body, had abstained from voting on the members from KP and Punjab, ostensibly due to the objections voiced by her own party chief.

Also telling was the resignation of Justice Shakeel Baloch from the Balochistan High Court on July 21 — a day before the two separate lists were sent to committee, which was accepted the very next day. The resignation was sent just days before he was due to retire and its swift acceptance also points to the presence of an understanding between both major parties even before the committee met to finalise names.

Finance Minister Ishaq Dar, who held consultations with the opposition leader over the appointment of ECP members on behalf of the prime minister, told Dawn that a joint list would have been sent to the parliamentary committee in case there was an agreement on all 12 names.

While admitting that four names were common on both sides, he insisted that separate lists were called for even if there was disagreement over one name, adding that it was the prerogative of the parliamentary committee to finalise any one name from each province.

Leader of the Opposition in the National Assembly Syed Khursheed Shah echoed Mr Dar’s view, maintaining that it was a constitutional requirement to send separate lists in case of a failure to reach a complete consensus.

Published in Dawn, August 24th, 2016

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