TWO of the four members of the Election Commission of Pakistan retired on Jan 26, 2019, after completing their stipulated term of two and a half years under an extraordinary arrangement of drawing lots to decide which two of the four members would retire and which two would go on to serve the full five-year term.
The ECP drew lots on Dec 10, 2018, under Article 215 (1) of the Constitution that provides a full one and a half months to complete the formalities for the appointment of new members. No action was taken. The date of retirement of the two members came, the members went home and again nothing was done. The Constitution grants an additional 45 days to fill a member’s vacancy. These 45 days ended on March 12 without any action. Who was supposed to act?
The Constitution clearly puts the onus of initiating the process of consultation on the prime minister. Article 213 (2A) states that “The Prime Minister shall, in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person”.
The phrase ‘shall’ does not leave much choice, and the responsibility of sending the agreed three names to the parliamentary committee is clearly the prime minister’s. In case there is no agreement between the prime minister and the leader of the opposition, both can send their separate lists of three names for each vacancy to the parliamentary committee, but that stage would only be reached when the prime minister has consulted the leader of the opposition and both have failed to reach an agreement.
The failure to fill the ECP vacancies can be attributed to the PM’s reluctance to talk to the opposition leader.
While the executive branch of the government failed to act, the legislative branch, to its credit, did its job in time. The National Assembly speaker constituted the 12-member ‘Parliamentary Committee on Appointment of Chief Election Commissioner and Members of the Election Commission of Pakistan’ even before the retirement of the two ECP members and the committee went on to elect its chairperson as well.
Although the committee has held preparatory meetings, its real task would begin when it has received the agreed or separate lists of the possible appointees. The committee was summoned to meet again on March 12 but the meeting was called off at the eleventh hour because it was perhaps realised that the committee had nothing much to do until it received the names of the prospective members.
Although both Prime Minister Imran Khan and Leader of the Opposition Shahbaz Sharif had made their mutual dislike quite obvious even before the 2018 general elections, it is inconceivable that the two would avoid an extremely important constitutional obligation and not be able to even hold formal consultation on a statutory appointment. One can probably afford to adopt this attitude in personal relationships but such personal likes or dislikes should not come in the way of discharging official national responsibilities, especially at the top-most level of the political leadership.
Earlier, at the peak of the recent Pakistan-India military showdown, Mr Khan chose to skip the in-camera briefing to parliamentary leaders including Mr Sharif on Feb 26, though his presence would have gone a long way in reinforcing the much-needed message of a united front against the aggression. Although Mr Khan’s pressing engagements during the crisis were cited as the reason for his absence, quite a few observers thought that probably the prime minister was avoiding a face-to-face meeting and a possible handshake with the leader of the opposition.
Generally, even bitterly opposed political leaders exchange courtesies during parliamentary sittings. The prime minister and leader of the opposition sit only an aisle away from each other in the National Assembly and it is almost impossible to avoid each other without being explicitly impolite.
Since Shahbaz Sharif assumed the leadership of the opposition, he and the prime minister have not been seen greeting each other. This not only strains the general environment of the house, and the bitterness gets transmitted to their respective followers outside the Assembly, thus polluting the overall national political climate. Exchanging pleasantries among the highly visible top political leadership is not merely a formality or a matter of personal etiquette; it impacts the national atmosphere in a big way. In this particular case, strained relations are directly affecting the affairs of the state in more ways than one.
Imran Khan, even before assuming the office of prime minister, had promised to personally answer questions in the National Assembly and the Senate in weekly or fortnightly Question Hour sessions in line with the British parliamentary tradition. This was a very welcome step and he probably became the first Pakistani prime minister to decide to formalise the Prime Minister’s Question Time in parliament paving the way to bring the people and the house closer.
Almost eight months down the road, he has not been able to honour his promise, primarily because the parliamentary leadership of the ruling party and the opposition have not been able to establish a working relationship that could assure the prime minister uninterrupted question time. This has deprived parliament and the people of Pakistan of a great opportunity to deepen democracy.
One may argue that if it is too difficult for Mr Khan and Mr Sharif to hold a face-to-face consultation, they may consult through some mutual contacts or exchange correspondence to agree or disagree on the possible choices to fill the two vacancies in the ECP. This indirect contact, however, may be challenged in a court of law which will have to then rule whether such indirect exchange fulfils the constitutional requirement of a ‘consultation’.
But the primary question that remains is why can’t the prime minister and the leader of the opposition overcome their inhibitions and start the process of consultation?
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, March 18th, 2019