IHC on ECP appointments

One of the constitutional provisions which deals with appointment of members of Election Commission of Pakistan - thanks to the 18th Amendment - has undergone a massive overhaul. Not only has President's "discretion" involving appointments been withdrawn but the relevant Article 213 has also been amended to confer on the parliament the final say in this regard. But what to do if parliament fails to select consensus candidates? The constitution, however, does not provide an answer to this profound question. One should know that this inability on the part of our constitution is not unique; constitutions elsewhere too suffer from this incompetence or flaw. That's why constitutions need regular updating - in some cases via formally sanctioned amendments and sometimes courtesy the make-do agreements. In parliamentary parlance, these arrangements are called traditions and conventions. The Islamabad High Court has sent the lingering disagreement over appointments of two members of ECP back to parliament, directing the presiding officers of the Senate and National Assembly to jointly endeavour to resolve the issue. Chief Justice Athar Minallah observed, "the court has no doubt that through collective wisdom, the parliament can resolve all political issues and ensure that constitutional provisions are followed and implemented in letter and spirit."

In fact, instead of the 'lenient view' the court could go for a stark verdict. According to the Chief Justice, the two ECP members, whom ECP chief refused to administer oath, "have not been appointed in the manner prescribed under Article 213 read with Article 218 of the Constitution of the Islamic Republic of Pakistan 1973." These two members were appointed by the President who had used his "discretionary powers" - an act disputed by the petitioners and rejected by the court. The court noted that the ECP is a constitutional body established under Article 213 of the Constitution and the appointment of its members must be made in accordance with the procedure laid down in that document. The provisions of the Constitution ought to be respected and implemented in letter and spirit "because Article 5 explicitly provides for that obedience of the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan". And, the "abrogation, subversion, suspension, and holding in abeyance of the Constitution or any attempt or conspiracy in this regard through any unconstitutional means have been made punishable under Article 6 (high treason)," the court warned. Earlier, the ECP had held that President Alvi not only "bypassed" the parliamentary committee but also violated the Constitution.

What's next? That the law ministry had misguided the President is a fact. It is, therefore, required to make an overall assessment of evolving situation with a view to identifying its own mistake or mistakes. The first deletion ordered by the 18th Amendment was the phrase "in his discretion", which had been added to Article 213 during the Zia era. How does it behove a democratically-elected President to do what suited an unelected dictator? Also, the President of Pakistan is under oath to perform his duty in accordance with the Constitution, and "will do right to all manner of people, according to law, without fear or favour, affection or ill-will." Instead of using the high office of the President to overcome the stalemate on appointment of ECP members, the ministry should have approached the court. Since the Constitution is silent on this a decision by the court could have been the best available option. That the political parties should nurture preference or otherwise for a candidate who is to act as member of an institution tasked to act impartially is also a matter of concern. It is, therefore, equally difficult to exonerate the Opposition from its responsibility to ensure that parliament effectively delivers on its mandate. Hopefully, now as the task to appoint members of the Election Commission of Pakistan is reassigned to the parliament it should turn the page this chapter of its history and work towards acquitting itself constructively.