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Saturday, May 18, 2024

President Vs Election Commission: Can President appoint ECP Members?

The IHC has sought assistance from three prominent lawyers to deal with the current controversy involving the CEC and the federal government.

In the latest development, the Islamabad High Court has decided to appoint three eminent lawyers Hamid Khan, Khalid Anwar and Makhdoom Ali Khan as amici curiae to assist it in petitions filed by two lawmakers against the appointment of two members of the Election Commission of Pakistan (ECP). The matter has become controversial after the ECP refused to administer the oath and his decision was challenged before the IHC.

The petitioners — Senator Mohammad Javed Abbasi and National Assembly member Dr. Nisar Ahmed Cheema — are members of the parliamentary committee that recommends names of ECP members.

According to details, after a preliminary hearing, IHC Chief Justice Athar Minallah appointed the amici curiae, clubbed these petitions with an already pending identical petition and adjourned the hearing till Oct 11.

President Asif Alvi had appointed two members of the ECP from Sindh and Balochistan on August, 22. Abdul Ghaffar Soomro and Justice (r) Shakeel Baloch, the ECP members from Sindh and Balochistan, retired in January. Their successors should have been appointed within 45 days of their retirement; however, it faced an inordinate delay because of a rift between the opposition and the government over the proposed names. Both sides did not agree upon any single name which led to the political deadlock.

The lawmakers – Mohammad Javed Abbasi and National Assembly member Dr. Nisar Ahmed Cheema – challenged the notification issued by the president for the appointment of Mr. Siddiqui and Mr. Kakar as ECP members from Sindh and Balochistan, respectively.

Legal experts believe that the CEC does not have prerogative or authority to look into the constitutionality of the notification to determine its validity.

In their petitions, the lawmakers contended before the court that since Prime Minister Imran Khan and Leader of the Opposition in the National Assembly Shahbaz Sharif had failed to develop consensus on the names of ECP members, the parliamentary committee on the appointment of the chief election commissioner and ECP members was deliberating upon the names for vacant positions in the ECP.

According to the petitions, it was a surprise for the lawmakers that instead of following the procedure laid down by the Constitution and the superior courts, President Alvi had made the appointments through his discretionary powers.

ECP’s Position

According to details, 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.

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 that 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.

Read more: President Alvi appoints 2 ECP members: Is it “unconstitutional”?

The petition maintains that 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.

Opposition Citicized the Government

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 criticized the move and said it exposed the real face of the ruling party.

Unconstitutional Refusal?

The President has appointed two members of the ECP and a notification has been issued in this regard. Legal experts believe that the CEC does not have prerogative or authority to look into the constitutionality of the notification to determine its validity. As per law, the CEC is supposed to administer the oath which he has refused to at the moment. Law Minister has repeatedly stated that the CEC should have acted in accordance with the law. “The law does not empower him to look into the process of the appointment, once the notification has been issued,” he said.