ISLAMABAD: The chief election commissioner (CEC) and members of the Election Commission of Pakistan (ECP) can only be removed through the Supreme Judicial Council and the only option available with the government is to file a reference with the SJC, a perusal of the relevant constitutional provisions reveals.

Under Article 215(2) of the Constitution, the Commissioner or a member [of the ECP] can only be removed from office in the manner prescribed in Article 209 for the removal from office of a Judge and, in the application of the Article for the purposes, any reference in that Article to a Judge shall be construed as a reference to the Commissioner or, as the case may be, a member.

The SJC headed by the Chief Justice of Pakistan comprises two senior most judges of the apex court and two chief justices of the high courts.

Article 209 (5) (b) reads: “If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court may have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter”.

Senior official terms demand for commission’s resignation unjustified

Article 209 (6) of the Constitution reads: “If, after inquiring into the matter, the Council reports to the President that it is of the opinion, that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and that he should be removed from office, the President may remove the Judge from office.”

Article 209 (7) states: “A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by the Article, and the same is the procedure to remove the CEC and any of the four members of the Commission.”

Though the demand by the government for resignation of the commission comprising the CEC and four members has been made on the basis of alleged failure of the ECP to conduct the recent Senate elections honestly, many believe that the results were in line with the expectations based on numerical strength of political parties in the national and provincial assemblies, except for the upset in the poll for a general seat from Islamabad where opposition candidate former prime minister Yousuf Raza Gilani defeated Finance Minister Dr Abdul Hafeez Shaikh.

When contacted, a senior ECP official said there was no justification for the demand for the commission’s resignation. He said criticism of the ECP over ‘its failure to use technology to make the votes traceable’ was a clear violation of Article 226 of the Constitution which provides for secret ballot.

“The ECP cannot rewrite or amend the Constitution,” he said, adding that the commission would continue to act strictly in accordance with the Constitution and law.

Some critics observe that the government’s campaign against the ECP had little to do with the Senate elections and it was only being used to keep the commission under pressure over the foreign funding case. They said the government was also targeting CEC Sikandar Sultan Raja — its own nominee for the slot — as some of the decisions taken by him had been embarrassing for it.

The critics said the ECP wanted to hold local government elections across the country, but the Pakistan Tehreek-i-Insaf (PTI) and its allies ruling three provinces wanted to drag their feet on the LG polls. They said the ECP’s decision to hold a fresh by-election in NA-75 Daska after the saga of missing presiding officers had also annoyed the government.

Interestingly, PTI government’s demand for resignation of the CEC comes on the eve of an important hearing before the ECP. The commission will take up on Tuesday (today) a complaint by PTI’s founding member and petitioner in the foreign funding case Akbar S. Babar against the ECP scrutiny committee’s decision to keep the ruling party’s accounts secret.

In his complaint filed on Feb 24, Mr Babar challenged the scrutiny committee’s decision to keep the PTI accounts secret, including the mostly concealed 23 accounts operated by chairman Imran Khan and other senior leaders of the PTI.

The accounts were revealed in July 2018 on the instructions of the State Bank of Pakistan and have since been kept secret by the scrutiny committee.

The committee has claimed in its order sheets that the documents cannot be shared with the petitioner as the respondent (PTI) objects to it.

Published in Dawn, March 16th, 2021