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.