Dark clouds hover over CEC, ECP
Shaheen Sehbai & Waseem Abbasi
Friday, February 08, 2013
From Print Edition
DUBAI/ISLAMABAD: Legal and political developments in Islamabad threw up a huge cloud of uncertainty on the hitherto non-controversial personality of Chief Election Commissioner, Fakhruddin G Ebrahim, as serious questions were raised about his appointment, along with the four controversial members of the commission.
As Dr Tahirul Qadri moved a petition to the Supreme Court on Thursday, a new and potentially explosive controversy erupted which could even lead to immediate dissolution of the Election Commission of Pakistan and may delay the elections, legal experts said.
The situation got deeply confused as Babar Awan, former PPP law minister who was deeply involved in the legal processes shortly before the CEC was appointed, and many leading lawyers raised questions about the process through which the ECP members and even the CEC were appointed.
Babar Awan, a legal aide to President Zardari and involved in many legal battles with the Supreme Court, told The News on Thursday night that he was not sure whether a Constitutional Committee (not a Parliamentary Committee), which was required to consider the names of the ECP members and CEC, was even formed by the Speaker of the National Assembly.
Even if it was formed, it did not take all the required steps listed in the Constitution and so many violations were apparent on the surface, which would disqualify the present CEC and ECP members, ab initio.
Babar Awan listed these violations as:
- Did the Speaker form the Constitutional Committee duly through a notification?
- Did the PM and Opposition Leader discuss/consult each other on all names of the ECP?
- Were these names of members finalised and then sent to the Constitutional Committee?
- Did the Committee announce the hearings inviting all to come and register their objections on the selected members?
- Did the Committee hearings finally conclude on approval of the ECP members’ names and were these names confirmed?
- Were these names then sent to the PM for onward advice to the President of Pakistan?
- Was the same procedure adopted for the Chief Election Commissioner, Fakhru Bhai?
Further complicating the situation, Fakhruddin G Ebrahim went on record in a TV channel to give a sort of ultimatum saying that even if one member of his ECP was removed, “All of us will go”.
A leading PML-N leader Shahid Khaqan Abbasi suggested to the Speaker of the National Assembly not to provide any record of the Committee hearings and proceedings to the Supreme Court, if this was required in Dr Qadri case. “We can withhold any data,” he said on a TV channel.
Babar Awan told The News over phone that if any of these procedures were not adopted, the appointment of the ECP members and the CEC would be in violation of the Constitution and could be struck off by the Supreme Court.
He said there were three recent cases which could guide the Supreme Court in this case. Two were similar verdicts of the SC in Irfan Qadir and Justice Deedar Shah cases in which proper constitutional procedures were not adopted and the SC disqualified both. The third case was the Judicial Committee’s decision on appointment of judges and the SC had asked for the record of hearings and details, which was not provided and thus its decisions were overturned.
As the former law minister spoke to The News, top lawyers Babar Sattar and Salman Akram Raja also threw in their weight behind the points raised by Dr Qadri in his petition moved to the SC.
Senior constitutional expert Salman Raja believes there is a serious lapse in the appointment of ECP members, as the Constitution clearly states that three names should be sent to the parliamentary committee for the selection of each member.
“Dr Qadri’s argument has weight. The prime minister and leader of the opposition cannot just send one name from each province to the parliamentary committee. They have to send three names so that the committee has a choice,” Raja said.
Talking to The News, seasoned lawyer and constitutional expert Babar Sattar also supported Qadri’s argument saying that Article 218 of the Constitution calls for parliamentary hearing for each ECP member, but the same was not done before selecting the current ECP members and even the Chief Election Commissioner Justice (retd) Fakhruddin G Ebrahim.
“Due process was not followed for the selection of ECP members. Now the Supreme Court has to interpret the consequences of not following the procedure,” he said, adding that even if the court vitiates the ECP appointments on Qadri’s petition, the same appointments can be regularised within a day by sending three names to the committee, including the names of current ECP members.
“The petition does not challenge the qualification of ECP members. Same members can be selected again through proper procedure” he said.
When contacted by The News, Raja Zafar-ul-Haq, a member of the Parliamentary Committee on Appointment of Chief Election Commissioner, claimed that enough names were sent to the committee by the prime mister and leader of the opposition.
“This is not correct that the committee received only one name for the selection of each member. The committee had three sittings and we thoroughly discussed the issue,” he said. He was of the view that Dr. Qadri’s petition was aimed at delaying the elections. “Why they did not object when these appointments were made around one-and-a-half years ago. Raising this issue just a few weeks ahead of parliament dissolution is aimed at delaying the polls,” he said.
Another committee member Lt Gen (retd) Abdul Qadir Baloch opined that parliamentary hearings were not conducted before the selection of ECP members, as the committee did not feel the need to do so.
“All the nominees were well-known. We knew their past and present, so we did not feel the need to hold hearing,” he said. The issue was also a hot subject on the social media.
Babar Sattar tweeted on the subject: “Procedural irregularities can vitiate appointments: 3 names not proposed; hearing not conducted.”
Salman Akram Raja, another leading lawyer, sent a tweet after talking to the PPP leader Raza Rabbani: “After 18 Amendment, the Constitution requires three names from each province for appointment of one to EC by parliamentary committee. Just spoke with R Rabbani: this wasn’t done.”
In another tweet he said: “The govt can seize the timetable by conceding constitutional violation before SC and re-doing the process before 16 March.”
In another message, he said: “Not just procedural mistake. Parliamentary committee is constitutional nominating authority. Its role usurped!”Yet another comment was: “SC can declare appointments void. If SC order given after 16 March after expiry of NA, won’t be possible to reconstitute EC!”
But the most interesting comments were made by Fawad Hussain Chaudhry, Adviser to Prime Minister and PPP spokesperson on the media. He sent out several Tweets, saying: “Article 218 says 3 names from each province to be sent to committee for confirmation..kia aisa hua?
- “seems Law Ministry made a huge blunder, names of members were never sent to parliamentary commission as required
- “On legal premises, challenge to Constitution of EC is very valid as Art 213 & 218 are clearly nt complied with while making appointments
- “yes rabbani sb is not member bot i know no names were sent quite surely”
- “I don’t agree PPP wanted to create any crisis just incompetence of law ministry I believe”
, just to make hot program and to get sponsors, he has habit to create rumors which proved wrong.
