The Government is making a mockery of the Constitution, in particular, on the question of the nominations of Members from Sindh and Balochistan to the Election Commission of Pakistan
ISLAMABAD (Pakistan Point News / NNI - 27th March, 2019) The Government is making a mockery of the Constitution, in particular, on the question of the nominations of Members from Sindh and Balochistan to the Election Commission of Pakistan.In the first instance, the stipulated time, under clause (4) of Article 215, Constitution, 1973, of 45 days for filling the vacancies in the Election Commission has long lapsed and the Government is in violation of the Constitution as the vacancies continue to exist.
The Constitution, 1973, provides, under paragraph (b) of Article 218, Constitution, 1973, that the Members are to be appointed in the manner prescribed in clauses (2A) and (2B) of Article 213, Constitution, 1973. Clause 2(A) of Article 213, Constitution, 1973, provides that the Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three Names for such appointment. In the instant case, no consultation has taken place between the Prime Minister and the Leader of the Opposition in the National Assembly.
It is strange that, at one stage, the Speaker who does not figure in Articles 213 and 218, Constitution, 1973, asked the Leader of the Opposition in the National Assembly, to submit names to fill the said vacancies. What is more ridiculous is that, on 11th March, 2019, an Additional Secretary of the Ministry of Foreign Affairs, for and on behalf of the Minister of Foreign Affairs, sent names for such appointments. It is, once again, pointed out that the Foreign Minister, any other Cabinet Minister or any other functionary cannot become a party to the "consultation" envisaged in Article 213, Constitution, 1973.
The word 'consultation' is defined in a string of Judgments of the Superior Courts, including the Supreme Court, to mean, "effective, meaningful, purposive, consensus oriented leaving no room for complaint for arbitrariness or unfair play. Further, this consultation has to be between the Prime Minister and the Leader of the Opposition and no proxy can be inducted.The proviso to clause (2A) of Article 213, Constitution, 1973, provides, for sending names, in case of disagreement between the Prime Minister and the Leader of the Opposition, to a Parliamentary Committee, This alternative mechanism can only come into play once the consultation has taken place between the Prime Minister and the Leader of the Opposition, but no avail.
In such a situation, when consultation has failed, then they will send three names, each, to the Parliamentary Committee formed by the Speaker of the National Assembly.Any other method the Government may employ will be ultra-vires to the Constitution and such appointments shall be subject to Judicial Review. It will be appropriate for the Government to follow the Constitution and settle matters of Parliament within Parliament, rather than having such matters referred to the Judiciary. NNI
