Navigating the conundrum of caretaker CM’s appointment in case of a demise

Relevance of outgoing assembly, careful consideration of political legitimacy concerns, inclusive decision-making are vital to securing appointment's credibility, moral legitimacy.
Published November 12, 2023

The recent demise of Khyber Pakhtunkhwa caretaker chief minister Azam Khan has once again ignited discussions around the process of an interim chief minister’s appointment and the integrity of the electoral process.

Diverse partisan suggestions have been circulated in the mainstream and social media, ranging from KP Governor Haji Ghulam Ali, affiliated with Jamiat Ulema-i-Islam Fazl, assuming the functions of the chief minister to appointing someone like the chief justice to assume the role. Some have even proposed that the Election Commission of Pakistan (ECP) appoint a cabinet minister or autonomously select a caretaker chief minister. Additionally, there are calls for the Senate to play a role in this appointment process.

Amid these calls, one encouraging development is that the KP Governor has written a letter to the former chief minister Mahmood Khan and former opposition leader Akram Durrani, inviting them for consultations for the appointment of their caretaker CM under Article 224(1A) of the Constitution.

As the process moves ahead, it is imperative to revisit the constitutional procedure for appointing a caretaker chief minister. This not only ensures adherence to the Constitution’s letter and spirit, but also safeguards the remaining credibility of the electoral process. This process is pivotal for the moral and political legitimacy of the upcoming KP elections.

The unique structure of a caretaker government, designed to conduct elections at the end of a government’s term, is a distinctive feature of constitutional democracies. In the case of Pakistan, this concept was introduced in 1985 and remains essential to prevent ruling parties from manipulating elections. To maintain the sanctity of this constitutional provision, it is crucial to navigate the appointment process diligently.

A critical aspect to address in ongoing discussions is the misconception regarding the governor’s role in assuming the responsibility of the interim chief minister. Contrary to some suggestions, the governor, after the 18th Amendment has no role in the discharge of executive functions except the constitutional promulgation of an emergency under the Constitution.

Bipartisan intent of caretaker appointment

Article 224 and 224A of the Constitution provide the meticulous procedure following the dissolution of a provincial assembly. Article 224 stipulates that, upon dissolution, a caretaker chief minister is to be appointed by the governor in consultation with the chief minister and the opposition leader in the outgoing provincial assembly. This initial consultation, rooted in bipartisan collaboration, is fundamental to the constitutional intent of a neutral interim chief minister.

However, Article 224A becomes relevant if consensus is not reached within three days between the chief minister and the opposition leader after the assembly’s dissolution. In such cases, they are required to forward two nominees each to a bipartisan committee constituted by the assembly speaker. This committee, comprising eight members with equal representation from the treasury and the opposition, is responsible for finalising the caretaker chief minister’s name within three days. If the committee fails, the matter is referred to the ECP for a final decision within two days.

A gap in the constitutional framework arises when addressing the procedure or interim arrangements if the appointed caretaker chief minister resigns or dies. Despite the Constitution’s silence on this matter, it is crucial to emphasise that the absence of explicit guidance does not negate the spirit or intent of the Constitution. The Constitution envisions a role for both the treasury and opposition benches at two out of three stages, highlighting bipartisan intent.

Since the appointment was done in the first stage and there were no disagreements between the outgoing chief minister and the opposition leader, there were no nominees for the committee or the ECP to consider. This necessitates restarting the entire process for a fresh appointment of the chief minister.

The constitutional provisions make it clear that the democratic and political actors, rather than the ECP itself, are responsible for the appointment of the caretaker chief minister. Arguments for the ECP to appoint a caretaker chief minister at this stage lack merit. The ECP’s role is only activated when the committee fails to decide within the stipulated timeframe.

Can there be an interim caretaker chief minister?

The Constitution does not envision such an appointment, except for a chief minister who the governor can ask to continue to hold office until his successor assumes office, under Article 133 of the Constitution. This provision only kicks in after a chief minister resigns from office. This aligns with constitutional offices that allow for interim or acting officeholders only for specific positions permanently occupied.

The constitutional framework explicitly designates five types of offices that must be permanently occupied. These include the president, governor, chief justice of Pakistan, chief justice of high courts and ECP commissioner. For each of these offices, the Constitution details who is designated to perform “acting” functions, as outlined in Article 260.

It is essential to emphasise the centrality of the outgoing assembly in this entire process. Even after the death of the chief minister, the Constitution clearly refers to the outgoing assembly as the starting point for the appointment of a new caretaker chief minister. Dismissing arguments that suggest the irrelevance of Article 224 or 224A due to the absence of a regularly elected chief minister or opposition leader, the Constitution, instead, explicitly designates the outgoing assembly as the relevant forum.

Political and moral legitimacy under scrutiny

From both a political and moral legitimacy standpoint, the current situation raises genuine concerns. The political dynamics surrounding the appointments by Mahmood Khan and opposition leader Akram Khan Durrani invite questions about the legitimacy of the decision and the incoming caretaker government. Given the recent allegations of political manipulation, persecution and changing loyalties, it becomes imperative for the ECP and political forces to exercise extra caution.

In particular, the exclusion of the PTI, a major stakeholder, from the decision-making process raises concerns about political legitimacy. The PTI, according to recent Gallup Pakistan surveys and the last two elections, has emerged as the largest and most popular party in the province. To address these concerns, it is crucial for Khan and Durrani to either include the PTI in the decision-making process or submit names to the parliamentary committee after considering the PTI’s suggestions.

In conclusion, the constitutional procedure for appointing a caretaker chief minister in KP transcends legal technicalities; it is a pivotal mechanism for upholding the democratic ethos. The continued relevance of the outgoing assembly, careful consideration of political legitimacy concerns and an inclusive decision-making process are integral to securing this critical appointment’s credibility and moral legitimacy. As KP navigates these challenges, a commitment to constitutional principles and a transparent, inclusive approach will fortify the democratic foundation on which our electoral system stands, reinforcing the very essence of a vibrant and resilient democracy.

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