Pakistan

CEC impasse – Pakistan – DAWN.COM

PAKISTAN is fortunate to have a constitutional provision which mandates the appointment of the chief election commissioner (CEC) and four members of the Election Commission of Pakistan (ECP) only after reaching a bipartisan consensus between the government and the opposition. This is a cherished but hard-to-achieve provision which many countries such as India had been struggling to include in their electoral laws for the last many years, but the parliamentary agreement on passing such a law has eluded their legislatures.

Contrasting the elaborate constitutional provisions in Pakistan, the Indian Election Commission appointments follow an Indian act of parliament passed in 2023. According to the act, a search committee headed by the law minister first prepares a shortlist of five candidates. The shortlist is then presented to a selection committee comprising the prime minister, leader of opposition, and a cabinet minister nominated by the PM. The composition of the selection committee clearly gives an edge to the government in appointing members of the election commission of its choice. Earlier the supreme court of India had included the chief justice of India in the selection committee, but an act of the Indian parliament subsequently superseded the supreme court judgment and replaced the chief justice of India with a federal minister nominated by the prime minister. The president of India makes the final appointment based on the selection committee’s recommendation. The senior-most member of the election commission assumes the role of the CEC. According to the Indian law, a CEC cannot be reappointed, and total service (as election commissioner and chief election commissioner combined) cannot exceed six years.

Despite the proven superiority of the Pakistani legal provision regarding the appointment of the CEC and members of the ECP, the process has proved to be challenging at times, including the present case. The constitutionally mandated five-year terms of the current CEC and two other members of the commission are over and so is the 45-day period within which the new officials were to be appointed. But the leader of the house and leader of the opposition have not taken even the initial steps of the appointment process, what to talk of the actual agreement on the names.

Timely election commission appointments were not always easy after the introduction of the bipartisan selection process prescribed in the 18th Constitutional Amendment in 2010. For the initial two sets of appointments in 2011 and 2016, while the governments and opposition rotated between the two experienced political parties — PPP and PML-N — the parties were able to make consensual appointments in the ECP; but later, the bipartisan consensus became very difficult.

The government seems to be in no hurry to initiate the process of new appointments.

During the PTI government (2018-2022), the process of ECP appointments hit a new low in August 2019 when the PTI government went ahead and made the president of Pakistan unilaterally notify the appointment of two members of the ECP. The CEC at that time, Justice Sardar Muhammad Raza Khan, quite justifiably refused to administer oath to the two notified members. The painful and protracted process of consultation finally yielded the appointments in January 2020, when the two vacancies were filled after a lapse of one year. The appointment of the new CEC was also made at the same time, though with less delay.

Prior to the 26th Constitutional Amendment passed in October 2024, the CEC and ECP members were to retire on completing their term, but after the amendment, they have been allowed to stay in their positions till the time their successors are selected and notified. Although there may be partisan reasons behind this particular amendment, the past history of long periods of vacancies in the EC must have been a compelling reason for allowing the incumbents to continue in their positions because the vacancies carry the potential of rendering the EC dysfunctional.

Although the Constitution’s Article 213 (2A) implies that the consultation process for the appointments in the ECP should be initiated by the prime minister by holding consultation with the leader of the opposition, the leader of the opposition has already taken a very hard position by announcing that he would not even write to the PM on the subject, what to talk of holding consultation. This seems to be a leaf out of former PM Imran Khan’s playbook, as Mr Khan had initially refused in 2019 to even write directly to then leader of opposition Shehbaz Sharif, to consult on the ECP appointments. Although the normal procedure would have been to meet in person and hold consultations, Mr Khan reluctantly brought himself to only write a letter to Mr Sharif.

Since after the 26th Constitutional Amendment, there is no question of creation of a vacancy in the ECP due to expiry of an incumbent’s term, the government seems to be in no hurry to initiate the process of new appointments. In addition, the next general election is not scheduled until 2029 and the government apparently feels comfortable with the current ECP. Hence, one cannot see the process of fresh ECP appointments moving forward swiftly. Although PTI has filed a petition in the Islamabad High Court seeking early appointments to the ECP, even this process may take considerable time given the long process of court appeals at various levels.

While concluding on this pessimistic note, one feels compelled to point to an important provision of the Constitution regarding the fresh ECP appointments which doesn’t seem to have been followed in the past appointments. Article 213 (2A) explicitly calls for ‘hearing and confirmation’ of any one person by the parliamentary committee constituted for the purpose of these appointments, while considering multiple candidates. It is important that the new parliamentary committee, whenever formed and considering candidates for the positions of CEC and ECP members, must define hearing and preferably hold public hearing to establish credibility of the process of appointments.

The writer is president of the Pakistan-based think tank Pildat.

president@pildat.org