ECP members case: IHC suspends presidential notification till next hearing

IHC Chief Justice Athar Minallah presided over the hearing of the case.

ISLAMABAD (Dunya News) – The Islamabad High Court (IHC) on Monday suspended the presidential notification of the appointment of two new members of the Election Commission of Pakistan (ECP) till the next hearing of the case on Dec. 5.

IHC Chief Justice Athar Minallah presided over the hearing of the case, and issued the order on an application filed by Pakistan Muslim League-Nawaz (PML-N) lawyer Jahangir Khan Jadoon.

The court remarked that the matter should be resolved in the parliament. “We are fully confident on the Speaker of the National Assembly and the Chariman of the Senate […] parliament’s dignity is a priority for us.” “The elected representatives in the parliament should make such decisions themselves.”

A lawyer told the court that three meetings had been held to resolve the issue but no breakthrough could be achieved due to intense ongoing political rifts amongst parties.

“The matter you are referring to, should have also be resolved in the parliament,” the court responded, while asking how much more time do the NA and the Chariman of the Senate would require. To this, the lawyer sought for four more weeks.

Justice Minallah stated that the retirement of the chief election commissioner is also near and so the issue should be resolved as soon as possible. “Resolve the issue before Dec.7 and inform the court,” he said.

On Oct 14, the court had ordered to transfer the case of appointment of two members of the ECP to the parliament.

The court had asked the Speaker of the House and the Chairman to prevent the ECP from getting ‘non-functional’. The court further remarked that the detailed judgment would be issued soon.

“Can’t the parliament resolve even such a small matter? […] Does the federal government still want to defend the persisting deadlock?” the judge had asked, adding that the court has its confidence on the parliament that it would resolve the issue.

“Constitutional institutions should not be made non-functional, does the government want this to happen?” he had further questioned, adding that the matter pertains to public interest.

“Election commission has almost become inactive,” he had mentioned, while asking could a hearing on the case be postponed only because it was pending in the Supreme Court.

In the courtroom, the additional Attorney General had asked for the court’s permission to acquire instructions from the government on the matter.

In the previous hearing, the court was asked to postpone the hearing of petitions filed against the appointment of two ECP members until the apex court decides a plea filed in connection with the matter.

On Aug 27, Jadoon had challenged the appointment of the ECP members from Sindh and Balochistan and requested the court to stop implementation of notification issued by the parliamentary affairs ministry.

Two petitioners, Senator Mohammad Javed Abbasi and National Assembly member Dr Nisar Ahmed Cheema, who are members of the parliamentary committee that recommends the names of ECP members, had also challenged their appointment in the IHC.

The petitioners had said that the criteria for appointment of the chief election commissioner and ECP members had been provided in the Constitution.

The petitions had contended that the notification issued for the appointment of ECP members on Aug 22 was in violation of Articles 213 and 218 of the Constitution.

The petitions had pointed out that due to the “grave illegality, the chief election commissioner has refused to administer oath” to the newly appointed ECP members.

According to the petitions, there is no constitutional provision which allows the president to appoint Mr Siddiqui and Mr Kakar by invoking his discretionary powers. After the passage of the 18th Constitution Amendment, the president has lost his discretion to appoint members of the ECP.

The petitioners had said the president, prime minister and parliamentary affairs secretary could not complete the constitutional process as a five-member Supreme Court bench had specifically provided guidelines for appointments in the ECP.

During the last hearing, the court had directed all parties to submit their written replies.

“Under Clause 2A, the prime minister shall in consultation with the leader of the opposition in the National Assembly forward three names for appointment to a parliamentary committee for hearing and confirmation. The Clause 2B explains the composition of parliamentary committee. The president not only violated these clauses but also bypassed the parliamentary committee while making these appointments.”

In August, the parliamentary affairs ministry had notified the appointment of Khalid Mehmood Siddiqui and Munir Ahmed Kakar as ECP members from Sindh and Balochistan respectively after President Arif Alvi’s approval.

The appointments came seven months after Abdul Ghaffar Soomro and Justice (retd) Shakeel Baloch got retired in January.

However, Chief Election Commissioner Sardar Raza Khan had refused to take oath from the two new members nominated by the government.