ISLAMABAD: Chief Election Commissioner retired Justice Sardar Mohammad Raza on Friday refused to administer the oath of office to the newly appointed members of the Election Commission of Pakistan (ECP), saying their appointment was against the Constitution.

The two members, who had been appointed by President Dr Arif Alvi a day earlier, arrived at the ECP headquarters to formally assume charge, but returned dismayed.

The CEC’s refusal to administer oath to the ‘unconstitutionally’ appointed members was termed unconstitutional by the law minister, who argued that the CEC had no authority to examine validity of government notifications. However, the opposition parties praised the CEC for upholding the supremacy of the Constitution and the parliament.

Informed sources told Dawn that when Khalid Mehmood Siddiqui and Munir Ahmad Kakar went to ECP Secretary Babar Yaqoob Fateh Mohammad’s office along with their joining reports, the secretary conveyed to them the CEC’s views on their appointment and a communication he had sent to the ministry of parliamentary affairs.

ECP crisis deepens as both sides trade barbs over members’ appointment by President Alvi

In his letter to the ministry, the CEC had observed that the appointment of ECP members was not in accordance with the relevant articles of the Constitution, the sources said. The CEC also cited a judgement rendered by a five-member bench of the Supreme Court in 2013, holding that the president does not enjoy discretionary power in appointment of CEC and ECP members. He made it clear that he would not administer oath to the ‘unconstitutionally’ appointed members.

Separate letters were also sent to Mr Siddiqui and Mr Kakar, asserting that their joining reports were of no consequence.

The Pakistan Peoples Party welcomed the CEC’s decision not to administer oath to the two ECP members, saying that the ECP had set an example by rejecting the unconstitutional move of the Pakistan Tehreek-i-Insaf government. In a statement, PPP’s parliamentary leader in the Senate Sherry Rehman said the procedure for appointment of ECP members had clearly been defined in the Constitution and the government had violated the document.

She said the government bypassed the opposition leader and the parliamentary committee on appointment of ECP members. She said the ECP had upheld the Constitution’s supremacy by the decision. She advised the government to learn giving respect to the Constitution and the parliament, and said the government could not be run through presidential ordinances and notifications. She also asked the government to review its ‘dictatorial’ approach.

Former chairman of Senate and constitutional expert Mian Raza Rabbani said the manner in which the two members were appointed by the president was a clear violation of Articles 213 and 218 of the Constitution. He said it was unfortunate that this attack on parliament and the Constitution had come from within, as under Article 50 of the Constitution, the president happened to be part of the parliament.

“In this instant case, the president has with mala fide intention violated the 18th constitutional amendment by making these appointments in his discretion,” he said, adding that the words ‘in his discretion’ had been omitted from the relevant article of the Constitution.

He said the entire process of appointment had been marred by constitutional violations for and on behalf of the government.

The constitutional requirement of filling these vacancies within 45 days of their occurrence had already been violated, he explained. “Those trying to wear the shoes of Sharifuddin Pirzada should realise that this is not a question of interpretation of an article but deliberate circumvention of the Constitution,” he remarked.

Spokesperson for the Pakistan Muslim League-Nawaz Marriyum Aurangzeb regretted that the parliamentary committee on appointment of the ECP members had been ignored and a one-sided decision had been taken. She demanded that the government reverse its ‘unconstitutional’ decision.

Law Minister Barrister Farogh Naseem described the CEC’s decision not to administer oath to the ECP members as unconstitutional. He said that the CEC had no justification and authority to examine the validity of the notification.

Published in Dawn, August 24th, 2019