ISLAMABAD: The Election Commission of Pakistan declared before the Islamabad High Court on Thursday that the order issued by President Dr Arif Alvi for the appointment of two ECP members from Sindh and Balochistan was in violation of relevant clauses of the Constitution.

In a related development, opposition parties condemned the reported government move to file a reference against Chief Election Commissioner (CEC) retired Justice Sardar Moh­a­m­mad Raza Khan for refusing to administer the oath to the ECP members and warned it of serious consequences.

“The government has already tried to unlawfully appoint ECP officials in both Sindh and Balochistan. Now they have initiated a move against the chief election commissioner because he refused to administer the oath [to ECP members] because of their unconstitutional appointment,” said Pakistan Peoples Party’s parliamentary leader in the Senate Sherry Rehman. “It seems like the ghost of Shareefuddin Pirzada’s past is guiding this government to its extra-constitutional ruin,” she added.

Pakistan Muslim League-Nawaz leader Ahsan Iqbal also criticised the move and said it exposed the real face of the ruling party.

Opposition parties condemn reported government move to file reference against chief election commissioner

In response to a petition filed by Barrister Jahangir Khan Jadoon in the IHC against the appointment of two ECP members, the commission argued that the CEC had declined to administer the oath because they had been appointed by the president without following the procedure laid down in clauses 2A and 2B of Article 213 of the constitution.

The ECP explained that under clause 2A, “the Prime Minister shall in consultation with the leader of opposition in the National Assembly forward three names for appointment of the commissioner to a parliamentary committee for hearing and confirmation”. Clause 2B explained the composition of the parliamentary committee, the reply said.

According to the ECP, the president had not only violated these clauses but also bypassed the parliamentary committee while making these appointments.

President Alvi had on Aug 22 appointed Khalid Meh­mood Siddiqui from Sindh and Munir Ahmed Kakar from Balochistan against the two positions earlier held by Abdul Ghaffar Soomro and retired Justice Shakeel Baloch from the respective provinces.

The CEC refused to administer the oath to both members-designate and wrote a letter to the law ministry, observing that the appointment was not in accordance with the relevant articles of the Constitution. He also cited a judgement issued by a five-judge bench of the Supreme Court in 2013, which held that the president did not enjoy discretionary powers in the appointment of CEC and ECP members. He made it clear that he would not administer the oath to the ‘unconstitutionally’ appointed members.

According to the petition filed by Barrister Jadoon, criteria for the appointment of CEC and ECP members have been provided in the Constitution. It said the notification issued for the appointment of ECP members on Aug 22 was in violation of Articles 213 and 218 of the Constitution.

The petition pointed out that due to the “grave illegality, the chief election commissioner has refused to administer oath” to the newly appointed members. It argued that there was no constitutional provision which allowed the president to appoint Mr Siddiqui and Mr Kakar by invoking his discretionary powers, adding that after the passage of the 18th Constitution Amendment, the president had lost his discretion to appoint the ECP members.

The petition contended that the initial consultation between the prime minister and the leader of the opposition had failed to take place. Then a deputy secretary of the Foreign Office sent the nominations to the leader of the opposition on behalf of the government, which were latter withdrawn, it added.

According to the petition, the president, prime minister and parliamentary affairs secretary could not complete the constitutional process due to mala fide though the five-judge SC bench had specifically provided guidelines for appointments in the ECP. It said the appointment of both ECP members had been made without following the due process and was marred with nepotism and favoritism.

The petitioner requested the court to set aside these appointments.

The petition cited President Alvi, Prime Minister Imran Khan, the parliamentary affairs secretary, CEC, Mr Siddiqui and Mr Kakar as respondents.

Published in Dawn, September 13th, 2019