THE five-member Election Commission of Pakistan is once again lacking its full strength after members belonging to Punjab and KP retired on July 26. The last time when there was a similar situation upon the retirement of two ECP members in January 2019, the appointment of new members remained stuck for a whole year. The ECP had to make do with only three members including the chief election commissioner (CEC) which is the minimum number required to keep the commission functional.
Subsequently, when the ECP chief also retired in December 2019 and the number of members dropped to two, the commission became non-functional and remained so for 53 days until a new (the present incumbent) CEC was appointed along with two other ECP members in January last year. This was despite the fact that the Constitution required, rather obligated, that the vacant position of CEC or an ECP member be filled within 45 days.
Filling vacancies at the ECP should have been a routine affair as the dates of retirement of each member are known well ahead of time and the government and other stakeholders can search for suitable candidates, complete consultations and get the final names approved by the concerned parliamentary committee — all in time without keeping the posts unfilled even for a day. The constitutionally mandated maximum period of 45 days to fill the vacancies is a concession which should not be required except in extraordinary circumstances, and routinely exceeding even this period should be unacceptable. Besides the recent two vacancies, three positions in the ECP fell vacant during the past three years and all three were filled after the grace period of 45 days was over. In two cases, the positions remained vacant way beyond the time allowed by the Constitution.
At the centre of the delay is non-compliance with the provision of the 18th Constitutional Amendment, which, following the increasing global trend to not leave the selection of election commissioners to the executive alone, made it mandatory for the prime minister to consult the leader of the opposition in the National Assembly and forward three names agreed upon for each vacancy to the parliamentary committee to be constituted for the purpose.
Filling vacancies at the ECP should have been a routine affair.
In case no consensus is reached between the prime minister and the opposition leader over the names of the candidates, each may forward three names per vacancy separately to the committee which is supposed to have an equal number of members from the ruling and opposition parties. Both Houses of parliament are represented in the committee with the Senate holding a third of the committee membership. The committee finally confirms one name for appointment against each position. Although the committee is free to devise its rules, the committee constituted last time had decided to make decisions by a simple majority.
During the process of appointment of two members of the commission in 2019, a problem had arisen at two levels. The key issue was the refusal of Prime Minister Imran Khan to engage in in-person consultations with the leader of the opposition. This refusal was embedded in the politics pursued by Imran Khan much before he came to power. He strongly believes and publicly professes that the leaders of the two major opposition parties — the PML-N and PPP — are corrupt; they have stolen national wealth and therefore he cannot sit with them, let alone enter into consultations with them. Even in sensitive national security situations such as the Indian aggression against Pakistan and the resulting war-like situation in February 2019, he avoided meeting the opposition, and instead, the army chief held discussions with the opposition leaders.
Apparently, the prime minister and the PTI believe that their narrative of corruption about their opponents has served them well and played a decisive role in their election victory in 2018. It seems that they have concluded that any meeting and in-person consultations between Imran Khan and the opposition will weaken the corruption narrative which, they believe, is the mainstay of their public support. Prime Minister Khan was even reluctant to personally write to the leader of the opposition to fulfil the constitutional formality of ‘consultation’, and instead, asked PTI parliamentary leader Shah Mahmood Qureshi to propose the names of the candidates for ECP membership. He, however, finally wrote a letter under his name after Shehbaz Sharif, leader of the opposition, rejected Shah Mahmood Qureshi’s letter.
Since written communication worked last time and no legal objection was raised, the same mode of consultation, in all likelihood, will be employed this time as well. Information Minister Fawad Chaudhry has categorically ruled out any direct Imran-Shehbaz consultation on ECP appointments only a few days back. The question that arises, is that if this is what the PTI plans to do, why delay the process. The letter from the prime minister should have been written by now for the two-stage process for the appointment of two ECP members to get underway.
The second problem likely to be encountered is the possible deadlock in the parliamentary committee where the government and opposition have an equal number of votes. Last time, the government and opposition had settled the matter through ‘give and take’ and this may turn out to be the way out even this time. It is rather sad that, instead of agreeing on a candidate who has the right credentials, as was done in the case of the current CEC, the two sides have generally opted to bargain, leading to the acceptance of a candidate each from the ruling and opposition parties.
Over 10 years ago, Pakistan, through the 18th Amendment, had taken a progressive step to provide for consultation between the government and opposition for the appointment of ECP members. Our political leaders should not allow such a democratic provision to act as a drag on the appointment process instead of enhancing the credibility of the ECP and the democratic process.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, August 1st, 2021