Chief Justice of Pakistan Justice Nasirul Mulk on Monday withdrew a top court judge who is acting as an interim chief election commissioner (CEC) with effect from December 5, directing the government to name a permanent head of the Election Commission of Pakistan (ECP) before that date.
The chief justice withdrew the services of acting CEC Justice Anwar Zaheer Jamali and notified this to the ECP secretary, according to a declaration of the Supreme Court. Justice Jamali is the third consecutive interim chief of the top polls body in less than one year. Before Justice Jamali, the incumbent chief justice, Justice Nasirul Mulk, and his predecessor, Tassaduq Hussain Jillani, had also served as acting CEC.
The CEC post had fallen vacant following the resignation of Justice (retd) Fakhruddin G Ebrahim on July 30, 2013 – a day after the presidential elections, which had become controversial after opposition parties blamed the ECP for failing to conduct them in an impartial manner.
On October 14, the Supreme Court had given the government two weeks to fill the constitutional post. Subsequently, Leader of the Opposition in National Assembly Syed Khursheed Shah requested the court for three to four months for appointing a permanent CEC. The apex court, however, rejected his plea and directed the government and the opposition on October 30 to appoint the new CEC by November 13.
On the request of the attorney general of Pakistan (AGP), the top court extended the deadline until November 24. And now the bench has given the government another opportunity to make the appointment by December 1.
During hearing of the case on Monday, a three-judge bench of the top court observed that in case of non-appointment of the CEC till December 1, the court shall consider issuing notices to the prime minister as well as the leader of opposition in National Assembly to demand an explanation on delay in filling out the key post.
Appearing before the bench, AGP Salman Aslam Butt said the government and most opposition parties had agreed on the name of one former judge [justice Tassaduq Hussain Jillani] but a major political party [Pakistan Tehreek-e-Insaf] raised objection over the nomination and resultantly the judge declined the offer. “The consultation process has once again started but Leader of Opposition in the National Assembly Syed Khursheed Shah is abroad and will be back in two days,” he said.
The AGP requested the court to further extend the deadline. However, the chief justice raised objection to the delay. Another member of the bench, Justice Gulzar Ahmad, observed that nothing was done to appoint a permanent CEC. He asked the AGP to bring a notification regarding the appointment of the CEC.
“In this modern era, contact can be established with the leader of opposition in Europe. We understand your sincere efforts. Can you place these efforts on the record?” Justice Gulzar asked the AGP.
The court noted that on the last date of hearing, it had told the AGP that the SC judge, who is performing as acting CEC, would be withdrawn. Under Article 217 of the Constitution, the chief justice can appoint any judge of the SC as acting CEC. According to the 18th Constitutional Amendment, the prime minister must consult the leader of the opposition in the National Assembly and reach a consensus on a nominee for the slot of CEC. In case they fail to agree on one name, both must propose three names each to a specially-constituted parliamentary committee, which can then pick out one name.
Commenting on the judgment, senior lawyer Dr Abdul Basit said the withdrawal of the SC judge as acting CEC will be a violation of the Constitution. “No constitutional post can remain vacant,” he added.
Supreme Court Bar Association former president Kamran Murtaza also expressed apprehension that if the new CEC was not appointed by Dec 5 and the court withdrew its judge, then the ECP would be paralysed.
Published in The Express Tribune, November 25th, 2014.
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If despite passage of nearly sixteen months, receiving many reminders from the Supreme Court, and in the circumstances where Imran Khan and Dr. Tahirul Qadri are challenging last elections, and are demanding fresh elections under a reformed electoral process, and Nawaz Sharif has also agreed to conduct electoral reforms which obviously need a full-time head as Chief Election Commissioner to work out and implement the reforms, if the appointment of a CEC continues to be delayed just because the Leader of the House and of the Opposition decide to proceed, not at a leisurely but decidedly lazy pace - which can be interpreted as anything but a definite and deliberate attempt by them to delay the appointment as long as possible, and in this situation, if the Chief Justice of Supreme Court threatens to withdraw his judge who has been working in an acting capacity, one can not really accuse him of acting hastily or in an improper manner, specially in the circumstances where the court is short on judges and long on list of cases waiting to be heard.
As for expression of concern by leading legal experts that withdrawal of acting CEC by the SC before another one is appointed would result in violation of the constitution because no constitutional post can be allowed to remain unfilled, well, the one and only person holding primary responsibility for this default, Nawaz Sharif should be penalized for the violation. It is common practice in offices, both government and private, that staff members wilfully neglecting their duty and found seriously and deliberately breaching the laid down policy and procedures are taken to task, and even relieved of their position. So why should Nawaz Sharif be spared. He can not even claim that being new to the system, he is still learning the ropes and deserves to be treated leniently.
It is quite obvious that Nawaz Sharif is taking advantage of the leniency displayed by the Supreme Court, and enjoying full support from the Leader of Opposition has further emboldened him, lifting his usual arrogance a few notches higher still. With the government bent on mischief, the only institutions that could make it see sense quickly are the superior judiciary and the army, and of the two, I think judiciary would be infinitely preferable, so be it, Good Luck and Godspeed.
Karachi
ECP like NAB needs a complete makeover. A constitutional office can not faithfully discharge its constitutional responsibilities.