ISLAMABAD: The Islamabad High Court (IHC) in a subtle way has reminded the government that a presidential order cannot overrule constitutional provisions while violation of the Constitution is tantamount to treason.

In the petitions filed against the appointment of two members of the Election Commission of Pakistan (ECP), IHC Chief Justice Athar Minallah observed that two ECP members “have not been appointed in the manner prescribed under Article 213 read with Article 218 of the constitution of the Islamic Republic of Pakistan, 1973”.

Subsequently, the court taking a lenient view of the matter referred the case to parliament for deciding the controversy related to the ECP members’ appointment by President Dr Arif Alvi.

President Alvi, using his ‘discretionary power’, appointed Khalid Mehmood Siddiqui from Sindh and Munir Ahmed Kakar from Balochistan on Aug 22 against two vacant positions from the respective provinces.

The petitions were filed by opposition party lawmakers Nisar Ahmed Cheema and Murtaza Javed Abbasi — both members of the parliamentary committee on appointments in the ECP and of the Chief Election Commissioner — against the presidential order that according to the petitions had bypassed the constitutional provisions. Besides, another petition against the appointments was filed by Barrister Jahangir Khan Jadoon.

Govt reminded that presidential order can’t overrule constitutional provisions

Attorney General Anwar Mansoor Khan conceded before the court that “the prime minister and the leader of the opposition could not form a consensus and, therefore,

the names were forwarded to the parliamentary committee as provided under sub-article 2A of Article 213 of the Constitution. The parliamentary committee constituted by the NA Speaker under sub-article 2B of Article 213 also could not confirm the names from the separate lists sent by Prime Minister Imran Khan and the Leader of the Opposition in the National Assembly Shahbaz Sharif. In such an eventuality, the President of Pakistan appears to have issued the notifications” for the appointment of ECP members.

The IHC chief justice observed that the parliament represented the people of Pakistan through their chosen representatives. Both the upper and lower houses, therefore, were expected to resolve political issues through dialogue and in accordance with the democratic principles so that involving the courts in such matters could be avoided and the time of the judiciary was used for deciding pending litigation.

The court noted that the ECP was a constitutional body established under Article 218 of the Constitution and the appointment of its members and the Chief Election Commissioner must be made in accordance with the procedure prescribed under Article 213.

Subsequently, the court declared that “the provisions of the Constitution ought to be respected and implemented in letter and spirit, because Article 5 explicitly provides that obedience of the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The abrogation, subversion, suspension and holding in abeyance of the Constitution or any attempt or conspiracy in this regard through any unconstitutional means have been made punishable under Article 6 [high treason].”

The court order said: “Therefore, a constitutional obligation of every member of the parliament to demonstrate through his or her conduct, as the case may be, loyalty and obedience to the Constitution. It is thus an obligation of the members to, individually and collectively, strive to uphold the constitutional provisions and ensure that constitutional bodies such as the ECP are constituted in the manner prescribed by the Constitution itself.”

“This court has no doubt that through collective wisdom, the parliament can resolve all political issues and ensure that the constitutional provisions are followed and implemented in letter and spirit,” the court order stated, adding that it was the “duty of the custodians of the two houses i.e. the Senate chairman and the NA Speaker to ensure that controversies between the treasury and opposition benches are amicably settled through democratic process.”

The chief justice observed that in case of ECP members’ appointment, “it appears that there is a stalemate between the treasury and opposition benches, particularly within the parliamentary committee constituted under sub-article 2B of Article 213 of the Constitution. The will of the people of Pakistan and their collective wisdom ought to be given highest respect by reposing confidence that their chosen representatives in the Majlis-i-Shura (parliament) would resolve all the political disputes and uphold the constitutional provisions without interference by courts.”

Subsequently, the court directed the secretaries of the National Assembly and Senate secretariat to place copies of this order before the worthy NA speaker and Senate chairman so that both could jointly endeavour to resolve the issue regarding ECP members’ appointment between the treasury and opposition benches.

The court also sought a report from both the secretaries by the next date of hearing and adjourned the matter till Nov 4.

According to the petitions, due to the “grave illegality, the chief election commissioner has refused to administer oath” to the newly appointed members. The petitioners said there was no constitutional provision that allowed the president to appoint Mr Siddiqui and Mr Kakar by invoking his discretionary powers. They added that after the passage of 18th constitutional amendment, the president had lost his discretion to appoint the ECP members.

They said the president, prime minister and secretary of parliamentary affairs could not complete the constitutional process due to mala fide though a five-member bench of the Supreme Court had specifically provided guidelines for appointments in the ECP.

In its written reply to the petitions, the ECP declared that the appointment of the new members of the ECP had been made by the President “without adopting the procedure laid down in clause 2A and 2B of Article 213 of the Constitution.”

According to the ECP, President Alvi not only “bypassed” the parliamentary committee but also violated these clauses of the Constitution while making the appointments.

Published in Dawn, October 15th, 2019