President’s illegal appointments or CEC’s unconstitutional act: Who is Wrong?

Law Minister believes that the CEC does not have jurisdiction to look into the process of appointment of the ECP’s members. Therefore, the refusal to administer the oath of the appointments President of Pakistan made is “unconstitutional”.

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In an interesting development, the Chief Election Commission of Pakistan has formally termed the notification issued by the President of Pakistan “illegal” before the Islamabad High Court (IHC). President Asif Alvi had appointed two members of the ECP from Sindh and Balochistan in the last month. The CEC refused to administer the oath stating legal grounds. Analysts believe the CEC should have administered the oath.

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.

Sources claim that Khalid Mehmood Siddiqui and Munir Ahmad Kakar arrived at the ECP headquarters to formally assume charge, but returned dismayed. The CEC refused to entertain them. Both members reportedly went to ECP Secretary Babar Yaqoob Fateh Mohammad’s office along with their joining reports, the secretary conveyed to them the CEC’s views on their appointment and communication he had sent to the ministry of parliamentary affairs.

According to the petition filed by Barrister Jahangir Khan Jadoon, criteria for the appointment of CEC and ECP members have been provided in the Constitution. It said the notification issued for the appointment of ECP members on Aug 22 was in violation of Articles 213 and 218 of the Constitution.

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.

Pakistan Muslim League-Nawaz leader Ahsan Iqbal also criticized the move and said it exposed the real face of the ruling party.

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.

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 Criticizes 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.

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

“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.

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