Appointment of ECP members: joint-sitting of Parliament urged to make constitutional amendment

Senate Standing Committee on Parliamentary Affairs has recommended the federal government to summon a joint sitting of the Parliament for passing a constitutional amendment to remove deadlock over appointment of Election Commission of Pakistan (ECP) members. The committee which met with Senator Sassui Palijo in the chair at Parliament House on Friday, discussed the issues related to appointment of ECP members and promulgation of ordinances by the president.
The committee members regretted lack of consensus on an important issue and agreed that since the matter is sub judice, after the decision of Islamabad High Court, the only way forward is making an amendment in the Constitution through a joint session of the Parliament. In current circumstances, most of the committee members regard it as a violation of the Constitution and appreciated the chief election commissioner for showing a bold stance.
While discussing the appointment of ECP members, Senator Farooq Hamid Naek said lacunas have been created in Article-213 of the Constitution. He said unfortunately, there is complete deadlock on the appointment of the members of ECP as the consensus could not be developed between the prime minister and the leader of the opposition in the National Assembly and among the members of the parliamentary committee.
"The President of Pakistan can decide on the advice the prime minister but he could not appoint the members of the ECP himself," he said. Farooq Naek, who is a prominent lawyer and former chairman of the Senate, proposed the committee that a joint sitting of the Parliament should be summoned for making an amendment in the Article-213 of the Constitution.
Committee chairperson Sassui Palijo said, "The president violated the Constitution on the appointment of ECP members. This action of the president was challenged at the ECP and court. The way out of this matter under Article-267(A) of the Constitution is making an amendment in the Constitution through a joint sitting of the Parliament."
According to Article 267(A): "Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, hereinafter in this Article referred as the Act, or for bringing the provisions of the Act into effective operation, the matter shall be laid before both Houses in a joint sitting which may by a resolution direct that the provisions of the Act shall, during such period as may be specified in the resolution, have effect, subject to such adaptations, whether by way of modification, addition or omission, as may be deemed necessary or expedient: Provided that this power shall be available for a period of one year from the commencement of the Act."
Senator Lt-Gen Abdul Qayyum (retd) while supporting the views of Naek said, "It is very serious issue and we should have made amendment by keeping in mind the interest of the country and not a specific government." He said that the authority of final decision may be given to ECP if any deadlock is created such like in the procedure for the appointment of caretaker prime minister.
Dr Sikandar Mandhro, who is also member of the parliamentary committee, said there was deadlock in the parliamentary committee and it sought new names for appointment of the members. "We cannot leave the situation unaddressed, we have to make legislation for conducting election and continuity of democratic process," he said.
Senator Pervaiz Rashid said, "It is very serious issue and the President violated the Constitution. The committees are eyes and noses of the Parliament and this committee should show serious concern so as the public officer holders should take care in future. "We pay tributes to the chief election commissioner who defended the Constitution on the appointment of the members of the ECP."
Senator Walid Iqbal of PTI said, "This matter is sub judice and let's wait for the decision of Islamabad High Court (IHC). It is inappropriate to say the President violated the Constitution. The Constitution is silent if there is any deadlock on the appointment of the members." Palijo said it is very serious issue and the committee could discuss this matter as the local bodies elections are nearing.
Senator Abdul Qayyum said, "If the Constitution is silent then it does not mean that the president should take powers. We cannot change the court decision but we have to find a way out of this issue." ECP Secretary Babar Yaqoob told the committee that the procedure of the Articles 213, 214 and 218 of the Constitution was not followed for the appointment of the members of the ECP. "We have written a letter to the Ministry of Parliamentary Affairs with attachment of a copy of the 2013 judgment of the court. This issued should be resolved immediately as the chief of ECP is being retried in December 2019," he said.
Discussing promulgation of ordinances by the President of Pakistan in terms of Article-89 of the Constitution of Pakistan, the committee took serious notice of this practice and stressed the need to curb it. Senator Sassui Palijo said such practice is detrimental to the spirit of democracy and as a matter of policy it must be determined that Parliament is regarded supreme. She said that the PTI government bypassed the Parliament and 15 ordinances were promulgated.
Senator Walid Iqbal said 18th Constitutional Amendment has imposed restrictions on the promulgation of an ordinance and even the Parliament can kill it. The committee stressed that Article 89 can only be invoked in the case of an emergency situation in which the Parliament ceases to operate, but this is a violation of the Constitution at any other time.
It was recommended that a study must be conducted to examine the use of Article 89 in various tenures after the passing of the 18th Amendment. The Foreign Private Investment (Amendment) Bill, 2018 and the Board of Investment (Amendment) Bill, 2018 were referred to the Senate Standing Committee on Finance and Revenue on the recommendation of members.