As days go by, it appears that Dr Tahirul Qadri’s bandwagon is swelling. Following in the footsteps of Pakistan Tehreek-e-Insaaf (PTI), Chaudhry Shujaat’s Pakistan Muslim League-Quaid (PML-Q) joined forces with Qadri in his demand for the reconstitution of the Election Commission on Wednesday.
The controversy initially broached by the Minhajul Quran chief is gaining impetus with the inclusion of new players. Earlier this week, the PTI publicly demanded the removal of members of the election authority, a call which PML-Q joined on Wednesday.
“We have full confidence in the chief election commissioner himself. But we believe that the rest of the members of the commission should be re-appointed,” Chaudhry Pervaiz Elahi was quoted as saying by a private TV channel. He also claimed that his party was the first one to question the appointment of these members to the commission.
PML-Q had expressed reservations over the credibility of the ECP earlier, during recently held by-polls in some constituencies of Punjab. But the party has now taken it a step further by publically demanding the removal of the members of the commission.
The ECP is a constitutional body whose nomenclature was changed in the 20th Amendment. Comprising the chief election commissioner and four members – each representing a province, all the members hold some power in key decision making processes, similar to judges of a bench in the superior courts.
Under known constitutional provisions, none of these members can be removed unless he resigns or through a presidential reference to the Supreme Judicial Council (SJC).
S M Zafar validates demand and provides legal remedy
S M Zafar, former Senator and PML-Q’s legal wizard, provided legal reasons to substantiate his claim that the appointment of members of the commission was invalid. He also prescribed a legal remedy for their removal.
Talking to The Express Tribune, Zafar said Article 213 of the Constitution pertains to the election commission and its members. He said in the 20th constitutional amendment a new clause (A) was added to the provision that set the procedure of appointment of CEC and members to the commission.
According to this procedure, the leader of House in the National Assembly (prime minister) and the leader of Opposition of the lower house have to send three names to a parliamentary committee against each post. The committee then selects one name from the three nominees after a hearing.
He further explained that this procedure was not followed in the appointment of any of the current four members of the commission. Rather, he said, only one person was nominated against each post and every one of them was endorsed without any hearing.
Under the law all such appointments are illegitimate, he said.
S M Zafar, who served as law minister in the 60’s, said there were two legal ways to remove these election authority members:
The first is by sending a reference to the SJC against any member for misconduct. However, he added, “I believe that all these members are honourable and none of them has any charges of misconduct, so the reference is not possibility.”
The second way to removal is through a judge-made law. Under this provision a person is removed in quo-warranto, which means “by what warrant?” in Medieval Latin. He claimed that there are various examples where a person was removed. “Former chief justice, Sajjad Ali Shah case is an example. There was no case of misconduct, but the Supreme Court said that the rule of seniority was not followed and he was removed. No reference was sent to the Supreme Judicial Council,” said Zafar.
Zafar said that he has apprised the law minister on his point of view and had appeared before him voluntarily when the controversy was being discussed in a meeting.
Meanwhile, Secretary ECP Ishtiaq Ahmed Khan opined that there is no other way to remove any of the members of commission except through reference.
Published in The Express Tribune, February 7th, 2013.