Absence of govt-opposition working ties: Key legal, constitutional appointments, electoral reforms bogged down

Tariq Butt
Tuesday, Sep 14, 2021

ISLAMABAD: The absence of even a semblance of a working relationship between the government and opposition is impeding three key appointments that are required for the smooth functioning of the concerned institutions and the parliamentary approval of electoral reforms.

Not only were these nominations but amendments in the election law were made in the past without much hassle for the simple reason that the government and the opposition of that time had held talks and hammered out differences by accommodating each other’s viewpoint. Essential appointments, where the opposition leader has a constitutional role to play, have invariably been stalled due to disagreements and a lack of dialogue during the first three years of the present government.

As anticipated, matters came to a head in the Senate standing committee on parliamentary affairs on the wide-ranging amendments in the Elections Act particularly the use of electronic voting machines (EVMs) and i-voting. The government and opposition MPs repeated their stands that they have been stressing since the proposals emerged. No attempt was made to find a middle ground.

It was clear that unless the government and opposition convinced each other showing flexibility, there was a little or no chance of an accord. In such a scenario, any party having a majority in the committee would carry the day. The government and opposition were not prepared to emulate the passage of the Elections Act, which was unanimously passed by the parliament in 2017. The Pakistan Tehreek-e-Insaf (PTI) was part of the consensus, which was then reached without any major roadblocks.

While everyone is reiterating their resolve to hold fair, free, transparent and uncontroversial elections, none is inclined to budge from their stand to find a common ground. Every side is struggling to impose its position on the other. If they continue to be sparring and engaging in a war of words the way they have been and fail to clinch a deal, the next parliamentary polls would be contentious, spawning more political anarchy.

If the government bulldozes these amendments in the joint session of parliament as it has planned, the issue of electoral reforms without reaching a consensus will continue to haunt the political landscape. The next stage of the showdown will shift to a superior court where such a law would be challenged. Considering the stand taken by the Election Commission of Pakistan (ECP) on these changes, there is every likelihood that it will repeat its viewpoint in the court, which will dent the case of the government.

As per the track record, the obligatory appointments that need consultations between the prime minister and leader of the opposition in the National Assembly Shehbaz Sharif have been stalled for a long time and an agreed formula has yet to be achieved. The same happened at the time of the nomination of two ECP members from Sindh and Balochistan. There is a repeat of that situation now when similar vacancies from Punjab and Khyber Pakhtunkhwa (KP) have occurred in the ECP.

The predictable reaction from the opposition leader – the rejection of all the six nominations made by the prime minister – has been released. So the process is back to square one. Shehbaz Sharif is yet to come up with his preferences yet. The constitutional solution provides that the two parties first try to arrive at a consensus. If they are unsuccessful, they must forward their respective choice names to the bipartisan parliamentary committee, having equal representation of the ruling alliance and opposition, for a decision. The constitutional deadline of 45 days to fill the ECP vacancies is unlikely to be met as just a few days are now left before its expiry.

The third appointment that is due to be made as a result of the consultations between the premier and the opposition leader is that of the National Accountability Bureau (NAB) chairman as the incumbent, Justice (retd) Javed Iqbal, retires on Oct 8.

While the Constitution provides for a forum - the parliamentary committee – in case Imran Khan and Shehbaz Sharif are unable to reach a consensus on the ECP appointments, there is no such body available in the National Accountability Ordinance (NAO) if they hit a stalemate. The law is silent as to what is to be done in such an eventuality.

Legal experts hold a unanimous opinion that the NAB would become non-functional after the office of the chairman falls vacant. There is no provision of an acting NAB chief if the chairman’s slot becomes empty.

Section 6 of the NAO provides for the acting chairman but only when the NAB head occupies the office but is absent or unable to perform his functions. “An acting chief can be named only when the chairman holds the office,” prominent lawyer Kashif Malik explained to The News.

He cited section 6, which says as and when the NAB head is absent or unable to perform the functions of his office due to any reason, the deputy chairman will act as the chairman and in case the deputy is absent or unable to perform the functions of the office, any officer of the NAB duly authorized by the NAB chief to act as the NAB chairman will do so.

NAB’s deputy chairman Hussain Asghar’s non-extendable three-year tenure will expire on April 25, 2022, six months after Javed Iqbal will retire.

The NAO says the NAB chairman will be appointed by the president in consultation with the leaders of the House and opposition in the National Assembly for a non-extendable four-year period. Javed Iqbal assumed office on Oct 8, 2017.

A retired Supreme Court chief justice or ex-judge or a retired high court chief justice, a retired armed forces officer equivalent to the rank of a lieutenant general or a retired federal government officer of grade 22 or equivalent qualifies to be selected as the NAB chairman.

When NAB’s present prosecutor general retired a few months ago, the government issued a presidential ordinance to remove the hurdle of his “non-extendable tenure” and reappointed him for another three-year term. About extending the tenure of the current NAB chairman, Kashif Malik said that nothing extraneous can be read into a statute.