By Senator Rehman Malik
It is a not healthy sign for democracy to have a deadlock on such important constitutional appointments which shows that our system has not yet matured enough to handle the national issues with the collective wisdom of government and opposition. Now, the recent crisis is emerging because of no consensus on a name from the names proposed by opposition and Government.
According to the constitution of Pakistan, the Election Commission operates under Article 213 to 221. The article 213 related to the appointment of Chief Election Commissioner and article 218 related to the election commission itself.
Under Article 213 & 216, the Chief Election Commissioner and four retired judges of the High Court’s from respective four provinces of the country, are appointed by the President in the manner provided in the clauses (2A) and (2B) of Article 213 of the constitution.
The President of Pakistan appoints the Chief Election Commissioner and four members of the Election Commission of Pakistan. The Prime Minister and Leader of the Opposition in the National Assembly recommend three names for appointment of CEC and for each Member to a parliamentary committee for hearing and confirmation of any one person against each post. The parliamentary committee consisting of 12 members is constituted by the Speaker of National Assembly comprising 50% members from treasury benches and 50% from opposition parties out of which one-third shall be from Senate. the Chief Election Commissioner has tenure of 5 years. The Chief Election Commissioner enjoys the same official status as available to Judges of the Supreme Court of Pakistan The Chief Election Commissioner can be removed by the President of Pakistan or the Supreme Court of Pakistan or through impeachment in the National Assembly of Pakistan.
The Constitutional provision for the appointment member of EC:-
Article 218 (1)(b) is related to appointment members of EC. [Four] members, each of whom shall be a Judge of a High Court [from each Province] [and Islamabad Capital Territory], appointed by the President after consultation with the Chief Justice of the High Court concerned and with the Commissioner.
Election Commission of Pakistan has a 5-member panel, out of which 4 members are from each of the four provinces (Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa) headed by a Chief Election Commissioner. The Commission transacts its business by holding meetings. All members of the Election Commission have equal status and say in the decisions of the Commission. The newly passed Elections Act 2017 from National Assembly dated 2nd October 2017 has now been enacted and General Elections 2018 was performed under this Act successfully.
we are Constitutionally encountering Issues in all constitutional appointments including our Chief election commissioner.
There are always deadlocks encountered in the past regarding appointment of ECP members because of the lack of consensus of government and opposition to resolve the issue in appointments and according to the recent petition in the Supreme Court, the appointments of Chief Election Commissioner once again has fallen before the Supreme Court.
If the matter of constitutional posts, every time, has to be decided by the courts then what is the need for such articles in the constitution. We as nation drafts and passes our laws according to the western standards but when it comes to implementation then we behave and act in a highly non-democratic manner and our personal likes and dislike overtake our democratic and constitutional responsibilities. Whereas this issue was to be resolved within 45 days, but the legal deadline has passed without even the initiation of proper legal consultation laid down by the constitution between the Prime Minister and the opposition leader.
The order of the time may be judged by this disorder in the processes where some backdoor belated commencement of the indirect consultation process is reported, a controversy has now emerged as a letter proposing names from the government side had emanated from the great Foreign Office and not from the Prime Minister which is declared authority to communicate to the opposition leader. It has happened for the first time where such an important internal affair is being dealt with as an external affair and an unconcerned body. There is a question in the mind of a common man that why such a deadlock always is there? Obviously, this is because of unwise clashes between government and opposition and they look to be in a war on this issue whereas the government has to be more responsible and flexible in such matters but it looks that government is driven into false egos and unfortunately many national issues have fallen victim of this war of power and ego.
4. I am sorry to point out that the cabinet spends more time to invent new ways and means to rub their political opponents including the sitting opposition but no time to such important issues. I was further disturbed to see the last cabinet meeting spent half of its time to find the ways and means by deliberating a law to block political opponents from appearing in media who are under trial and in process of court proceedings.
I think someone should have told the cabinet members and the Prime Minister that a convict can not be allowed on media during his jail presence and if the convict is on bail then he is a free man and his right to speak can not be blocked and suppressed.
I hope the cabinet to spend more time to deliberate on such constitutional issues and to look into problems of common man rather spending more time on deliberating on arm twisting of their opponents. The elected representatives must realise that they owe their duties to the people of Pakistan to uphold the dignity and supremacy of the Majlis-e-Shoora (Parliament). It is their obligation to ensure that people’s confidence in the Parliament is continued unhurt. This can only be achieved with their selfless and honest national approach without personal interests. They have to ensure that the disputes are resolved without involving the courts’ and other extra intervention. Let there be change on the such appointments leaving not at the mercy of Prime Minister and opposition leader but such appointments may be done with three names agreed by the opposition and the leader of the house and accordingly be sent jointly the to joint Parliament session and let it be decided with the majority of the votes through secret ballot. Study shows that India, USA and France have the good models of election administrative model which is Quoted here below
“Election Commissioners of India are members of Election Commission of India, a body constitutionally empowered to conduct free and fair elections in India to the national and state legislatures. The Election Commissioners are usually retired IAS or IRS officers.
Whereas the power of the Election Commission of India is derived from Article 324 of the Constitution of India. Chief Election Commissioner of India is usually a member of the Indian Civil Service and mostly from the Indian Administrative Service. It is very difficult to remove the authority of the Chief Election Commissioner once appointed by the president, as two-thirds of the Lok Sabha and the Rajya Sabha need to present and vote against him for disorderly conduct or improper actions and the decisions of the commission are taken by a majority vote. The Chief Election Commissioner cannot be removed from his post easily on account of any political reasons. This is necessary so as to preserve the independence of the election commission. Chief Election Commissioner of India can be removed from his office by the Parliament with a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehaviour or incapacity. Other Election Commissioners can be removed by the President of India on the recommendation of the Chief Election Commissioner. No Chief Election Commissioner has been impeached in India.
Whereas the commission in the USA is made up of six members, who are appointed by the president of the United States and confirmed by the United States Senate. Each member serves a six-year term, and two seats are subject to appointment every two years. By law, no more than three commissioners can be members of the same political party, and at least four votes are required for any official Commission action.
The chairmanship of the Commission rotates among the members each year, with no member serving as chairman more than once during a six-year term. However, a member may serve as chairman more than once by serving beyond the six-year mark if no successor is appointed;
By in large the role of the Parliament is in almost all democratic countries and we brought in a modified form of ECP appointment through constitutional processes but it continues to fail every time.
Unfortunately, we fail every time to make constitutional appointments because every unsecured ruler want their own man.
The national instructions have to be free of the culture of likes and dislikes of rulers and other leaders on the helm of national affairs.
Note: Opinions expressed are solely my own and not necessarily to reflect the views or opinions of my party.
(The author is central leader of Pakistan Peoples’ Party, member of Pak Senate and Chairman, Senate Interior Affairs Committee.)