Refusal by ECP members to quit averted constitutional crisis

ISLAMABAD: The unequivocal refusal of the members of the Election Commission of Pakistan (ECP) to step down has averted a grave constitutional crisis that was going to subvert the high profile by-polls in Lahore and Lodhran.
Had the ECP members quit, a serious mess would have been spawned like that of 2010-2011 when a constitutional amendment had to be introduced to validate 23 by-elections which were held in the presence of a severe lacuna of incomplete ECP. The new ECP members were unlikely to be appointed at an early date considering the political environment.
As the members, all retired high court judges, declined to leave their offices prematurely, succumbing to the Pakistan Tehreek-e-Insaf (PTI) pressure, the ECP unfolded the election schedule for these constituencies for polling to be held on October 11.
The apprehension of a constitutional void vanished after the ECP, in an institutional response, explicitly declared after a meeting that the ECP members would not quit because they strongly feel that the charges leveled against them should be adjudicated upon by the Supreme Judicial Council as they have been systematically ridiculed and stigmatized with false and baseless allegations of rigging.
The ECP members’ rebuff has disregarded PTI Chairman Imran Khan’s threat to stage a sit-in in front of the ECP offices in Islamabad on October 4, just a week before the polling, if they did not resign by then.
A general view was that if today the ECP members agreed to walk out under political pressure, tomorrow another set of politicians will demand ouster of some other state functionaries, and there will be no end to this practice.
Back in 2010, the 18th amendment, which was passed by the Parliament, dispensed with the condition of sitting high court judges to be made ECP members. As it was enacted by the president, the four sitting high court judges, who were then the ECP members, had to go vacating their positions.
After that it was

required to nominate the retired high courts justices immediately. However, it was not done and by-elections were held as the parliamentary vacancies occurred for different reasons.
The matter of by-elections held with the ECP being incomplete was raised in the Supreme Court. It was argued that these by-polls were invalid because the ECP did not have members over the past one year and hence it was incomplete. The court agreed with the contention and asked the government to give constitutional cover to the by-elections otherwise they would be void. Those who had been elected were suspended for the time being and were barred from taking part in the parliamentary proceedings.
However, the omission was taken care of in the 20th amendment, and thus, the by-elections became legitimate. This amendment was specially enacted for the purpose.
After weeks of haggling and amid other battles being fought outside Parliament, the government and opposition finally joined hands to unanimously pass a revised constitutional amendment, which provided for restoration of suspended federal and provincial lawmakers, a strong ECP and a pre-election interim setup.
The new amendment gave the ECP the final say in appointing caretaker setups at the federal and provincial levels before general elections if politicians and a bipartisan parliamentary committee fail to reach a consensus and prescribed five-year tenures for four ECP members.
It provided that if an outgoing prime minister and the leader of opposition in the National Assembly fail to agree on any person to be appointed as caretaker premier within three days of the dissolution of the assembly, they will forward two nominees each to the parliamentary committee to be immediately constituted by the Speaker comprising eight members of the outgoing assembly or the Senate, or both, having equal representation from the treasury and opposition, to be nominated by the prime minister and the leader of the opposition respectively.
A similar procedure was provided for the provinces, with the difference that if members of opposition in a provincial assembly are less than four, they all will be members of the committee.