LAST Sunday, Aug 25, marked the completion of eight months during which two of the four positions of the members of the Election Commission of Pakistan remained unfilled despite the constitutional provision, Article 215(4), that each vacancy has to be filled within 45 days.
This long and ongoing delay in filling these statutory positions can be attributed to two obvious factors. First, the federal government was late in initiating the process of filling these positions and second, the government and the opposition hit a deadlock when they could not reach a consensus on the selection of the persons for the two positions.
In a surprise move, the government tried to break the deadlock by unilaterally deciding to appoint the two ECP members. The president issued a notification to that effect on Aug 22. To the government’s great embarrassment, however, the chief election commissioner refused to administer the oath of office to these two appointees, who could therefore not join their duties. This extraordinary decision of the CEC was based on his legal assessment that the appointment of the members has not been made in accordance with the provisions of the Constitution.
In a surprise move, the government tried to break the deadlock unilaterally.
One, however, feels that this assessment did not require the expertise of an eminent legal mind like that of the CEC’s, a former judge of the Supreme Court, as Article 213 of the Constitution is very explicit in laying down the requirements of a bipartisan consensus for the appointment of the CEC and ECP members. The Constitution requires that the prime minister consult the opposition leader in the National Assembly and forward three names agreed between the two for each vacancy to the parliamentary committee constituted for the purpose, with equal representation of the ruling party and the opposition. The parliamentary committee is then required to pick one nominee from the three names.
In case the prime minister and opposition leader fail to agree on a single set of three names for each vacancy, both can send separate lists of three persons each for each vacancy to the parliamentary committee, which can then pick one name out of the six candidates.
Sadly, this two-stage process could not yield consensus candidates for appointment to the ECP to fill the two positions vacated on Jan 26 this year. Earlier, in 2011 and 2016, when this new procedure of consensual appointment devised in the 18th Amendment was last implemented, the opposing parties were able to reach consensus for the appointment of four ECP members each time. This time, when even the parliamentary committee was not able to reach a consensus, the Constitution did not prescribe a way out of this deadlock.
By contrast, the appointment of the caretaker government at the time of the general election last year has been prescribed as a three-stage process under Article 224 of the Constitution. In case the leader of the House and leader of the opposition fail to reach a consensus and the parliamentary committee constituted for the purpose also hits a deadlock, the matter is automatically referred to the ECP for final decision. In the case of appointments of the CEC and members of the ECP, the prescribed procedure simply stops at the parliamentary committee, without providing a way out in case of a deadlock.
After the inability of the prime minister and leader of the opposition to reach a consensus at the first stage, and inability of the parliamentary committee to agree at the second, the government probably had three options to proceed forward. First, they could have continued deliberations in the parliamentary committee and tried harder to reach an agreement. The second option could have been to try to pass a constitutional amendment in parliament to prescribe a solution. The third could have been to refer the matter to the Supreme Court and seek its opinion under Article 186 of the Constitution, and then act accordingly.
Surprisingly, the government, instead of exercising any of these options, unilaterally decided to notify the ECP members. The ministers for law and parliamentary affairs have insisted that the action not only conformed to the Constitution, but also that the CEC’s refusal to give oath to the notified nominees was beyond his constitutional authority. The matter is now before the Islamabad High Court for adjudication.
The essence of amending the procedure of appointing the CEC and the ECP members through the 18th Amendment was to devise a bipartisan system of appointment of members of the ECP in order to win trust for the electoral process across party lines. It was the result of a long struggle to replace the constitutional provision of the discretionary appointment of the CEC and the ECP members by the president with the current provisions that prescribe bipartisan consensus. The government apparently ignored the spirit of the Constitution by acting in a discretionary and unilateral manner.
Probably the larger issue is the absence of a working relationship between the government and the opposition, which continues to cause hurdles in the smooth running of the state. The ECP had drawn lots on Dec 10, 2018, to decide which two members would retire on Jan 26. The government should have initiated the process of consultation on the new appointments right away. But it did not act until March, when the prime minister wrote a letter to the opposition leader. Initially, he avoided writing directly and asked his secretary and an official of the Foreign Office to write on his behalf. Finally, the prime minister suggested names for the two positions in a letter signed by him, which was reciprocated by the leader of the opposition with two separate sets of three names for each vacancy.
At no stage did the prime minister consider it fit to meet the opposition leader and discuss the subject in an effort to find common ground. As long as this mindset of not working with each other prevails, the democratic process will continue to hit snags.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, August 31st, 2019