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THE PML-N’s response to PTI’s demand that the prime minister should resign during a probe into the 2013 elections has been that a lawful and constitutional functionary cannot be displaced in this manner. In other words, PTI demands, and PML-N rejects, the concept of an ‘acting prime minister’. It is a pity then that the PML-N’s fidelity to the lawful and constitutional order of things abides only as deep as the prime minister himself.
On Tuesday, the Supreme Court directed the government to appoint a new chief election commissioner by Oct 28. The office of the CEC has been vacant since the resignation of Fakhruddin G. Ebrahim on July 31, 2013. Article 213 of the Constitution prescribes the method for appointment of the CEC. The prime minister and leader of the opposition must consult and send three names to a parliamentary committee comprised of equal members from the treasury and opposition benches. The parliamentary committee is to hold a hearing and confirm any one of the three names.
Despite the passage of 15 months since the last CEC’s resignation, no move has been made to appoint a new CEC. Instead the Election Commission of Pakistan (ECP) has been headed by various acting CECs appointed in accordance with Article 217 (ie a serving judge of the Supreme Court appointed by the chief justice of Pakistan). Since July 2013, the country has had three Acting CECs — all judges of the Supreme Court and in charge for a few months each.
Article 217 states that an acting CEC is to be appointed only when the office is “vacant” or if the incumbent is “unable to perform the functions of his office”. It is clearly meant to be only a stopgap arrangement to allow the government to appoint a replacement and is not meant to create a permanent state of affairs. If it is used to de facto create a permanent state of affairs that would be in complete contravention of Article 213.
No move has been made to appoint a new chief election commissioner.
This is because the Constitution envisages the ECP as an independent and non-partisan body. Further, most of its functions are administrative and organisational in nature — to hold and conduct free and fair elections — and not judicial (apart from resolution of election disputes). This is why, while it is acceptable to have a non-partisan judge of the Supreme Court step in temporarily while a replacement is appointed, he is neither institutionally suited nor constitutionally mandated to perform the functions required of a dynamic and effective CEC.
In fact, one main reason for having a standing ECP is that the most important work in conducting free and fair elections cannot be done in the immediate lead-up to elections. Delimitation, effective electoral reform in collaboration with parliament and other stakeholders, voter education, technological innovation, updating voter lists, strengthening the ECP administratively are all crucially important to holding free and fair elections.
Such improvements in the electoral exercise require that a CEC with security of tenure, vision and the time and constitutional mandate to implement that vision be in charge of the ECP.
These changes and improvements and any legislative amendments required to implement them can only take place in the years between elections ie at this time. Therefore, any serious effort at electoral reform would begin with the proper appointment of a CEC to invigorate the ECP as a meaningful and dynamic stakeholder in the reform process.
Further, a government serious about electoral reforms would also appoint an independent and able permanent chairman Nadra — another important stakeholder — on an urgent basis. Instead, Nadra is also functioning under an acting chairman since the previous chairman was removed/resigned in January 2014.
Ironically, the PML-N has proved singularly adept at running the affairs of government on an acting basis. The SECP, OGDCL, and Pemra are only some examples of institutions that are being run on an acting basis with no permanent lawful appointment.
Earlier this year, the Lahore High Court also held that the Punjab government’s failure to appoint an advocate general (instead giving ‘look after’ charge to various individuals) for over two years in the last six years was a symptom of ad hocism and violated the Constitution.
The court has further held that even where the Constitution does not provide a time frame for appointment, a constitutional office should be filled within 30 days [ie the time frame required for a new president to be appointed under Article 41(5)].
While the PML-N rejects the idea of an ‘acting prime minister’, it would do well to listen to itself and reject the practice of running the rest of the government on an acting basis.
The writer is a lawyer.
Published in Dawn, October 16th, 2014
