ISLAMABAD: Two members of the Election Commission of Pakistan (ECP) from Sindh and Balochistan retired on Saturday upon the completion of two and a half years in office, with no apparent sign of the immediate filling of the vacancies that will reduce the number of the commission’s strength to half.

Although a 12-member parliamentary committee for the appointment of ECP members, headed by federal Minister for Human Rights Dr Shireen Mazari, has been constituted by the speaker of the National Assembly, the due process of the prime minister’s consultation with the leader of the opposition for the purpose is yet to commence.

The mechanism for the retirement of two members after their half-term in office was put in place through the 22nd Amendment to ensure the continuity of the electoral body. The amendment was made to avoid the repetition of the experience of 2010, when four members retired at the same time and the commission remained virtually non-functional for months. Consequ­en­t­­­ly, the legality of around two dozen by-polls held by the then chief election commissioner (CEC), in the absence of members, faced legal challenges.

Consultation between prime minister, opposition leader to fill vacancies yet to begin

Article 215 of the Constitution in its amended form reads: “The commissioner [and a member] shall, subject to this article, hold office for a term of five years from the day he enters upon his office.” A proviso to the article reads: “Provided that two of the members shall retire after the expiration of first two and a half years and two shall retire after the expiration of the next two and a half years: Provided further that the commission shall, for the first term of office of members, draw a lot as to which two members shall retire after the first two and a half years.”

The draw to decide which two members would lose their office on Jan 26, 2019, was held at an event presided over by CEC retired Justice Sardar Mohammad Raza. A draw held in the second week of December established that member from Sindh Abdul Ghaffar Soomro and member from Balochistan retired Justice Shakeel Baloch would retire. That means the ECP had given the government a month and a half to complete the process of appointment, before the two members retired, but this could not happen. Nobody knows when it will start.

Information Minister Fawad Chaudhry’s mobile phone was switched off when this reporter attempted to contact him to seek information, while the chairperson of the parliamentary committee on the appointment of ECP members, Dr Mazari, was also not available.

Under Articles 213 and 218 of the Cons­ti­tution, the prime minister — in consultation with the leader of the opposition in the National Assembly — puts forward three names for the appointment of a commissio­ner, or ECP member, to a parliamentary com­­­­mittee for the confirmation of one name.

The parliamentary committee, constituted by the NA speaker, draws half its members from the treasury benches and half from opposition parties, based on their strength in parliament, to be nominated by their respective parliamentary leaders.

In case a consensus cannot be reached between the prime minister and the opposition leader, the law says that each shall forward separate lists to the parliamentary committee for consideration. The strength of the parliamentary committee must be 12 members, one-third of whom will be from the Senate. An official said that the process of consultation between the prime minister and the opposition leader, and deliberations at the level of the parliamentary committee, may take time, particularly if a difference of opinion arises.

An instant impact of slackness on part of the government in initiating the appointment process would render ineffective a presidential ordinance recently promulgated to legally empower the CEC to constitute two benches instead of one to hear and decide cases filed with the ECP. Section 6 (3) of the Elections Act 2017 in its original form reads: “The commissioner shall constitute benches comprising three or more members of the commission to hear and decide complaints, applications, petitions or appeals filed before it under this act.” Under the ordinance, the word ‘three’ was replaced with ‘two’. The ECP comprises the CEC and four members — one from each province. Since the total strength comes to five, the constitution of a bench comprising three or more members means that practically, only one bench can be formed.

Published in Dawn, January 27th, 2019