ISLAMABAD: As the four newly appointed members of the Election Commission of Pakistan (ECP) take the oath on Wednesday (today), questions have been raised over procedural flaws in the process under which the appointments were made by a parliamentary committee.

A notification for appointment of the four members — retired Justice Irshad Qaiser, the first woman member of the ECP, Abdul Ghaffar Soomro, the first non-judicial officer to hold the office, retired Justice Shakeel Baloch and retired Justice Altaf Ibrahim Qureshi — was issued by the Ministry of Parliamentary Affairs on Tuesday, a day after confirmation of their names by a parliamentary panel.

In a surprising move, the parliamentary committee on appointment of ECP members, which is dominated by the PML-N and the PPP, took less than two hours to select four names from two lists comprising 12 names each sent to it by the government and the opposition. It indicates that an understanding had already been reached between the two parties and the committee only endorsed the selections.

The two lists had been kept as a guarded secret and it continues to be so even after the confirmation of the four names by the parliamentary committee headed by Information Minister Senator Pervaiz Rasheed.

“Despite understanding on the names, the two lists were sent to the committee to play with the words of the amended Constitution which before addition of a proviso required hearing by the committee”, Dr Arif Alvi, a Pakistan Tehreek-i-Insaf lawmaker said while talking to Dawn.

Article 213 (2-A) of the Constitution reads: “The prime minister in consultation with the leader of the opposition in the National Assembly shall forward three names for appointment of the commissioner (and each ECP member) to a parliamentary committee for ‘hearing and confirmation’ of any one person.”

A proviso has been added to Article 213 (2-B) which reads: “In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate lists to the parliamentary committee for consideration which may confirm any one name.”

Mr Alvi said the spirit of the law could not be ignored by adding a proviso to a constitutional provision. The matter was open for judicial scrutiny and could be challenged in court, he added.

Ahmed Bilal Mehboob, president of the Pakistan Institute of Legislative Development and Transparency, said Article 213 (2A) clearly mentioned that the parliamentary committee would be responsible for hearing and confirmation of one name for each position.

“The constitutional provision stipulates hearing as a prerequisite of confirmation,” he said. “The parliamentary committee has committed an irregularity by confirming four names without any hearing. This has rendered the process of selection of EC members defective.”

He recalled that when four ECP members were appointed in 2011, the objection to lack of hearing was raised and Syed Khurshid Shah, who was then the chairman of the parliamentary committee, had acknowledged that it was a serious lapse on the part of the committee. The same lapse had occurred again, he added.

Mr Mehboob said though everybody knew that four members of the EC would retire on June 12, neither the prime minister initiated the process of consultation with the leader of the opposition nor the National Assembly speaker constituted the parliamentary committee in time. The speaker constituted the committee on June 14, two days after the four members of the ECP had retired and the commission had become non-functional.

No meaningful progress was made in the appointment of ECP members until July 14 when the Supreme Court directed the government to make appointments by July 27, he said.

“Who will be held responsible for rendering the ECP — one of the most important statutory bodies of Pakistan — non-functional for 43 days?” he asked.

Mudassir Rizvi of the Free and Fair Election Network — an alliance of dozens of NGOs working for electoral reforms — said a more democratic way for crucial appointments such as those of ECP members warranted transparency. “Each name that is being considered must be shared with the media and public along with reasons for consideration or rejection. A public discourse on credentials and merits and demerits of the persons being considered for the posts will enrich decisions made by the political parties. Such practices are common in advanced democracies where public parliamentary hearings are held for constitutional appointments. Such practices enhance public confidence in political decisions and improve legitimacy of public institutions.”

He also called for constitutional amendments to ensure that the offices of the ECP chairman and members must not be left vacant. “The time frame for selection and appointment of the ECP chief and members should conclude before the last day of the incumbent in office. The nomination and appointment process should be limited to three months and conclude before the last day in office of the preceding member in a normal situation and within three months after death, physical or mental incapacitation, impeachment or resignation of an ECP member,” he said.

Published in Dawn, July 27th, 2016