Pakistan's election chief may stay in office beyond retirement

Pakistan’s controversial election chief is set to retire on January 26. However, as per the changes made under the 26^th Constitutional Amendment he could continue in the role for as long as it takes to appoint a new chief.

The process to appoint a new Chief Election Commissioner (CEC) is yet to be initiated.

Sikandar Sultan Raja’s five-year term as the CEC will end along with the tenures of Election Commission of Pakistan (ECP) members from Sindh, Nisar Durrani, and Balochistan, Shah Muhammad Jatoi.

As per the divisive amendment, passed in 2024, Clause 1 of Article 215 mandates that the CEC and members will continue in their roles after completing their term until new appointments are made and the appointees assume office.

Govt yet to initiate process

Chief of Pakistan’s largest opposition party, the Pakistan Tehreek-e-Insaf (PTI), Barrister Gauhar Ali Khan, stated that the government has not contacted the opposition leader regarding the matter yet.

The office of National Assembly Opposition Leader Omar Ayub informed Nukta that no formal written communication or letter has been received from the Prime Minister regarding the appointment of the Chief Election Commissioner and members. The process will proceed in accordance with the Constitution as soon as such a communication is received, it maintained.

The Ministry of Parliamentary Affairs, Ministry of Law, and the National Assembly Secretariat have all confirmed that the appointment process has not yet commenced.

The constitutional process

Articles 213 to 217 of the Constitution of Pakistan outline the process for appointing a CEC and members of the ECP. The process requires consultations between the Prime Minister and the Leader of the Opposition in the National Assembly.

According to Article 213 (2A) of the Constitution, the Prime Minister must formally initiate consultations with the Leader of the Opposition and propose three names. If this fails, the matter is then referred to the parliamentary committee.

The Speaker of the National Assembly is then responsible for forming a parliamentary committee for the purpose, which is to consist of 12 members.

Article 213 (2B) of the Constitution stipulates that the parliamentary committee must have equal representation from both the opposition and the government. One-third of its members are to be drawn from the Senate, with the remaining two-thirds from the National Assembly. Thus, out of the 12 members, eight are to be from the National Assembly, and four from the Senate.

In case of disagreement between the Prime Minister and the Leader of the Opposition, both submit their proposed names to the committee, which then selects one candidate for the position.

Article 215 (4) of the Constitution mandates that the process of appointing Commissioners and Members to vacant seats must be completed within 45 days.

Eligibility for the election chief’s post includes former Supreme Court judges, technocrats, and bureaucrats below 68 years of age. For Election Commission members, retired high court judges, bureaucrats, and technocrats below 65 years of age are eligible.

'26th Amendment ensures ECP continuity'

Former ECP Secretary Kanwar Dilshad told Nukta that the 26th Constitutional Amendment has ensured continuity in the commission by allowing the Chief Election Commissioner and its members to remain in their positions until new appointments are made.

He described the amendment as "very correct," emphasizing that without it, the retirement of the Chief Election Commissioner and members on January 26 would have rendered the Election Commission inactive.

He added that while the amendment safeguards the Election Commission's functionality, the Constitution mandates that appointments to these posts must be finalized within 45 days. “Hopefully, Opposition Leader Omar Ayub and the Leader of the House, Prime Minister Shehbaz Sharif, will agree on a candidate acceptable to all parties,” he remarked.

Kanwar Dilshad also expressed concern over the judiciary's growing controversies. He said that after the 26th Constitutional Amendment, the role of the judiciary—particularly the Supreme Court—has been impacted. “The Supreme Court’s status now seems akin to that of a civil court, with its role and authority diminishing,” he noted. He further claimed that the Supreme Court's constitutional interpretation powers are being challenged, which has weakened its writ.

Regarding the ECP, Dilshad said the amendment has increased its powers, but warned of potential conflicts. “If the Election Commission rejects decisions from the Supreme Court or high courts, it could lead to contempt of court issues,” he explained, adding that such conflicts could create complications during elections, particularly if returning officers are drawn from the judiciary or administration.

Dilshad highlighted the historic controversies surrounding the appointment of the Chief Election Commissioner. He recalled that in 2014, when the government and opposition failed to agree on an appointment, the Supreme Court had to intervene. Similarly, in 2019, during the PTI government, the delay in appointing a Chief Election Commissioner led to opposition parties approaching the Supreme Court after the prime minister failed to initiate consultations.