ISLAMABAD: The Election Commission of Pakistan (ECP) has been incomplete for a week after retirement of two members and is set to suffer from intermittent vacuum.

A senior official of the ECP told Dawn that it had swiftly acted to decide through a draw which two members would retire on Jan 26 to give 45 days to the government for appointment of replacements for the members from Sindh and Balochistan.

He said the commission had a long list of activities for the coming months warranting immediate appointment of two members. He proposed an amendment to the relevant law to make it mandatory to start the process of appointment of chief election commissioner (CEC) and ECP members two months before their retirement date and finalise the process at least a week before creation of vacancy to prevent any vacuum in the constitutional body.

Under the Constitution, the ECP comprises a chief election commissioner and four members — one from each province.

Commission is set to suffer from intermittent vacuum, fears official

The official feared that the phenomenon of delay in filling vacancies and subsequent vacuum would continue to jolt the ECP in days ahead. He pointed out that Chief Election Commissioner retired Justice Sardar Mohammad Raza will retire in December and two members on July 26, 2021. The new members from Sindh and Balochistan will retire in 2024 after completion of their five-year term. He said delay in appointments each time would cause vacuum.

The mechanism for the retirement of two members after their half-term in office was put in place through the 22nd Amendment to ensure the continuity of the electoral body. The amendment was made to avoid the repetition of the experience of 2010, when four members retired at the same time and the commission remained virtually non-functional for months. Consequently, the legality of around two dozen by-elections held by the then chief election commissioner, in the absence of members, faced legal challenges.

Article 215 of the Constitution in its amended form reads: “The Commissioner [and a member] shall, subject to this Article, hold office for a term of five years from the day he enters upon his office.”

A proviso to the article reads: “Provided that two of the members shall retire after the expiration of first two and a half years and two shall retire after the expiration of the next two and a half years: Provided further that the Commission shall for the first term of office of members draw a lot as to which two members shall retire after the first two and a half years.”

However, under the amended law, it was a one-time arrangement meaning that in future all members will complete their five-year tenure.

National Assembly Speaker Asad Qaiser had constituted the parliamentary committee on appointment of CEC and ECP members even before the retirement of the two members, but Prime Minister Imran Khan is yet to start the process for consultation with the detained Leader of the Opposition in the National Assembly, Shahbaz Sharif.

Under Articles 213 and 218 of the Constitution, prime minister in consultation with opposition leader forwards three names for the appointment of a CEC or commission member to a parliamentary committee for confirmation of one name.

The parliamentary committee, constituted by the NA speaker, draws half its members from treasury benches and half from opposition parties, based on their strength in parliament, to be nominated by their respective parliamentary leaders.

In case a consensus cannot be reached between the prime minister and the opposition leader, the law says that each will forward separate lists to the parliamentary committee for consideration. The strength of the parliamentary committee must be 12 members, one-third of whom will be from the Senate.

An official said that the process of consultation between the prime minister and the opposition leader and deliberations at the level of the parliamentary committee might take time, particularly if a difference of opinion arose.

Published in Dawn, February 4th , 2019