ISLAMABAD: The stalemate on the appointment of the Chief Election Commissioner (CEC) and two members of the Election Commission of Pakistan (ECP) is set to end with a possible amendment to rules of the panel concerned which currently requires a two-thirds majority for confirmation of nominees for the positions.

“The rules made by the Parliamentary Committee which was constituted in 2011 are not binding on the existing Parliamentary Committee,” observed Islamabad High Court (IHC) Chief Justice Athar Minallah while hearing the petitions filed against the appointment of two ECP members.

The adviser to the National Assembly on Tuesday informed the IHC that due to some procedural issues in the rules of the parliamentary committee it could not develop consensus on the names for the top ECP slots. Subsequently, the court observed that the committee might frame rules afresh to resolve the issue.

At present the ECP is virtually dormant as the posts of the CEC and two ECP members are vacant.

Rules made in 2011 are not binding on existing parliamentary committee, observes IHC chief justice

On Aug 22, President Dr Arif Alvi appointed Khalid Mehmood Siddiqui from Sindh and Munir Ahmed Kakar from Balochistan against the two ECP positions which fell vacant after terms of Abdul Ghaffar Soomro and retired Justice Shakeel Baloch from the respective provinces were completed.

The ECP in its written reply stated that President Alvi made these appointments “in violation of clauses 2A and 2B of Article 213 of the Constitution”.

The IHC on Nov 4 suspended the appointments and referred the matter to the parliament. However, the parliamentary committee could not finalise the candidates for the vacant slots.

In the meantime on Dec 5, the post of the CEC also fell vacant after the retirement of retired Justice Sardar Mohammad Raza.

National Assembly’s secretary Tahir Hussain and adviser Abdul Latif Yousafzai on Tuesday appeared before the IHC chief justice. They stated that the last meeting of the parliamentary committee could not be held because some of its members were not able to attend it due to inclement weather.

However, they stated that considerable progress had been made and some more time was required by the committee to finalise the recommendations.

Mr Yousafzai drew the attention of the court to rules made by the parliamentary committee which was constituted in 2011.

Plain reading

He stated that the said rules were hampering the proceedings of the existing parliamentary committee. With the assistance of the learned adviser and the learned counsel for the petitioners, the Rules of Procedure and Conduct of Business in the National Assembly, 2007 and the rules made in 2011 have been carefully perused. A plain reading of the Rules of 2007 unambiguously shows that a parliamentary committee constituted under Article 213(2B) of the Constitution of Islamic Republic of Pakistan, 1973 read with rule 244(C) of the Rules of 2007 has the freedom to make rules for regulating its procedure under rule 244(C)(5) ibid. The rules of 2011 were made by the then constituted parliamentary committee.

The existing parliamentary

The committee, therefore, is at liberty to make separate rules for regulating its procedure. It is obvious from the cumulative reading of the above provisions that the rules made by the Parliamentary Committee which was constituted in 2011 are not binding on the existing Parliamentary Committee. It is the latter which may make rules to regulate its procedure independent of the rules made by the Committees which were constituted earlier.

The learned counsels for the petitioners have affirmed that the existing Parliamentary Committee is at liberty to make rules to regulate its procedure.

It may be mentioned that parliamentary committee in a meeting scheduled for Dec 24 had planned to amend the committee’s rules. However, the plan reportedly dropped as Section 10 of the rules reads: “The committee shall have power to amend any of the provisions of these rules with two third majority of the total membership of the committee.”

IHC Chief Justice Minallah noted that “the spirit of the constitutional provisions contemplates that recommendations would be made through consensus. This is an onerous duty of the leaders of the House and the Opposition. Nonetheless, if it is not possible to make recommendations through consensus, then the Members of the Parliamentary Committee are expected to achieve the object described in the Constitution of the Islamic Republic of Pakistan, 1973 by adopting democratic procedures and principles.”

The court adjourned further hearing in this matter till Jan 15.

Published in Dawn, January 1st, 2020