ISLAMABAD: The Islamabad High Court (IHC) on Monday suspended the presidential order of ‘controversial’ appointment of two members of the Election Commission of Pakistan (ECP), as the Senate chairman and the National Assembly speaker could not resolve the issue in three weeks after the court referred the matter to parliament.

On Aug 22, President Arif Alvi had appointed Khalid Mehmood Siddiqui from Sindh and Munir Ahmed Kakar from Balochistan to fill the positions that fell vacant after the departure of Abdul Ghaffar Soomro and retired Justice Shakeel Baloch from the respective provinces. However, the ECP chairman refused to administer the oath to them on the ground that the appointments were made without fulfilling the constitutional requirements.

Two members of the Parliamentary Committee on Appointment of Chief Election Commissioner and Members of the Election Commission of Pakistan — Nisar Ahmed Cheema and Murtaza Javed Abbasi — as well as Barrister Jahangir Khan Jadoon challenged the presidential order, arguing that the appointments were unconstitutional.

The ECP in its written reply endorsed the petitioners’ contentions that President Alvi made these appointments “in violation of clauses 2A and 2B of Article 213 of the Constitution”.

At a previous hearing on Oct 14, the IHC observed that the provisions of the “Constitution ought to be respected and implemented in letter and spirit because Article 5 explicitly provides that obedience of the Constitution... The abrogation, subversion, suspension and holding in abeyance of the Constitution or any attempt or conspiracy in this regard through any unconstitutional means has been made punishable under Article 6 [high treason]”.

Members of parliament along with custodians of both houses are expected to resolve issue, observes court

The court referred the matter to parliament with the expectation that the error would be rectified.

However, when IHC Chief Justice Athar Minallah resumed the hearing on Tuesday, National Assembly Secretary Tahir Hussain appeared before the court and stated that “the worthy Speaker of the National Assembly and the worthy Chairman of the Senate have held several meetings in order to resolve the issue raised in these petitions”. In order to enable them to make constitutional provisions for the appointment of ECP members workable, the official requested the court to adjourn the proceedings.

Justice Minallah observed that “this court has full confidence that the worthy Speaker of the National Assembly and the worthy Chairman of the Senate will resolve the matter within the parliament and that too without the interference of this court”.

He observed: “The parliament consists of members elected by the people of Pakistan. The parliament, therefore, represents the aspirations of the people of Pakistan and it is the supreme forum for ensuring that decision-making process meets their needs and hopes. Every person elected to the parliament makes an oath solemnly swearing in the name of Allah that he or she, as the case may be, shall perform functions honestly, to the best of his or her ability, faithfully in accordance with the Constitution. Article 5 of the Constitution explicitly provides that obedience of the Constitution is the inviolable obligation of every citizen.

“It is, therefore, a constitutional duty of every member of the parliament in general and the Leader of the House and Leader of the Opposition in particular to ensure that the constitutional provisions are implemented in letter and spirit. It is also the duty of every member of the Majlis-i-Shoora (parliament) to uphold its sanctity because it is paramount. Every member is expected to rise above party affiliations and strengthen the parliament by upholding the provisions of the Constitution.’’

In the court order, Justice Minallah said: “The worthy Chairman of the Senate and the worthy Speaker of the National Assembly hold their respective offices as politically impartial personalities. They as custodians of the two respective Houses of Majlis-i-Shoora are expected to play an effective role to ensure that the Constitution is upheld and the Election Commission of Pakistan, one of the most important constitutional bodies, is constituted in accordance with the intent of the Constitution makers.

“This court is confident that the endeavours made by the worthy chairman of the Senate and the worthy Speaker of the National Assembly will amicably resolve the issue without interference by this court.’’

Suspending the presidential order, Chief Justice Minallah announced: “Till the next date fixed, operation of the impugned notification, dated August 22, 2019, shall remain suspended.”

Published in Dawn, November 5th, 2019