Explainer: PM Shehbaz, CMs continue till caretaker setup appointed

KARACHI: Per the constitution, Prime Minister Shehbaz Sharif as well as provincial chief ministers can continue in office till the caretaker prime minister and chief ministers are appointed. Legal experts say that the process of appointing a caretaker prime minister (and chief ministers) is simple enough and should be seamless.

Supreme Court advocate Salman Raja says that the process detailing the appointment of a caretaker prime minister and chief minister is given in the constitution of Pakistan under Articles 224 and 224A.

Article 224 says that “the caretaker prime minister shall be appointed by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly”. This is replicated in the case of a province: so a caretaker chief minister will be appointed by the governor in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly. This process can take a maximum of three days from the day of the National Assembly’s dissolution.

What happens if the two sides cannot agree on a name? In that case, says Raja, Article 224A comes into play. If even after three days there is no consensus between the outgoing prime minister and the outgoing leader of the opposition in the National Assembly, under Article 224A(1) they are to “forward two nominees each to a committee to be immediately constituted by the speaker of the National Assembly”. This committee should comprise eight members of the outgoing National Assembly, or the Senate, or both. There is to be equal representation from the treasury and the opposition, and the members of the committee are to be nominated by the prime minister and the leader of the opposition respectively. The process remains the same in the provinces, Article 224A (2) laying out the process in that case.

The committee has three days to come to a decision regarding the name of the caretaker prime minister or chief minister. But it is quite possible that even at this stage, there is no consensus between the outgoing treasury and the outgoing opposition.

Envisaging this, the constitution has provided for such an eventuality in the form of Article 224A(3), which says that “in case of inability of the committee to decide the matter” [within three days], “the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days.” There is no fourth recourse after this and, as put by Raja “the ECP is the last word [in this matter]”.

The total process for nominating a caretaker prime minister or caretaker chief minister can thus take up to eight days, and per the constitution that is the limit. Explains Salman Raja: “The whole process will take a maximum of eight days -- three days for the prime minister and leader of opposition to decide; if they can’t then three days for the committee; and if that can’t either then two days for the ECP. Till then, the incumbent prime minister [and the incumbent chief ministers] shall remain in office under Article 224A(4).”

It may be a simple process -- but have there been any hitches where the constitutionally mandated procedure has been challenged? PILDAT President Ahmed Bilal Mehboob cannot think of any such moment: “In my opinion, [the process] is very clear and I don’t recall any instances where any such hitches may have happened.”

He says there is a reason why we have not encountered any significant issues in appointing caretaker PMs or CMs. It is because the process given by the constitution makes it virtually impossible for there to be any major hurdle. Mehboob calls it “an interesting three-step process”, adding that while “there can be problems in the first two steps -- and we have encountered those in the past -- in the last step it goes to the ECP”.

For Mehboob, that makes the difference: “The ECP is an institution of a different calibre; it is not political and it is not partisan [so it is generally easier for it to come to a decision]. That is why the constitution has given the ECP two days to decide while it gives the first two rounds three days each”.

There have been times when a caretaker prime minister (or CM) has been appointed in the first two stages and times the ECP has had to decide, says Mehboob. He adds that “For example, in the matter of the current caretaker CM of Punjab, the matter went all the way to the ECP but in the Khyber Pakhtunkhwa situation the nomination of the caretaker CM was agreed to right at the first stage”.

For analyst Aasiya Riaz, the whole caretaker appointment process is “fairly simple”. She feels that the [outgoing] “government is fully using -- and in fact actually exhausting -- the constitutional provisions on consensus regarding caretaker PM...There may already be a consensus. But since the objective is to buy time, it appears the government is doing just that.”