Daily Times

There are certain constitutional and statutory offices in Pakistan wherein appointees cannot be removed from their respective positions except through a process to be followed for their removal as prescribed under articles 209, 210 and 2011 of the Constitution.

One of such offices among them is the office of chief election commissioner. The mandate and functions of Election Commission of Pakistan have also been prescribed under Article 219 of the Constitution, which include preparing electoral rolls for election to the National Assembly and the provincial assemblies and revising such rolls annually, organizing and conducting election to the Senate or to fill casual vacancies in a house or a provincial assembly, appointing election tribunals, and holding of general elections to the National Assembly, provincial assemblies and the local government.

Under Article 213 of Constitution, read with provisions of Election Act, 2017, the federal government and opposition in Parliament has the mandate to appoint chief election commissioner through a consultation process mentioned in detail in these two laws. After such appointment made through this legal process, the chief election commissioner can leave the seat by resigning himself before expiry of his legal term. But if does not do so, than he could only be removed through a process as required for a judge of Supreme Court or high court under Article 209 of the Constitution of Pakistan.

The Supreme Judicial Council under Article 209(1) of the Constitution comprises Chief Justice of Pakistan, two senior most judges of the Supreme Court and two most senior chief justices of the high courts. Proceeding before the Supreme Judicial Council under Article 209 of the Constitution can be initiated through different mechanisms, including on an information received from any source to the Council, or by the President directing to the Council or finally the Council may on its own motion as per Article 209 (5) of the Constitution.

As per Article 209(6) of the Constitution, if after inquiring into the matter, the Supreme Judicial Council reports to the president that it is of the opinion that the judge is incapable of performing the duties of his office or has been guilty of misconduct, and that he should be removed from office, the president may remove the judge from office. The same principle applies in the case of Chief Election Commissioner of Pakistan. Further if there is a difference of opinion amongst the Council members, the opinion of the majority shall prevail as per Article 209 (4) of the Constitution, and the report of the Supreme Judicial Council to the President shall be expressed in terms of the view of the majority of members. However, and in every these two situations, the chief election commissioner would be given an opportunity of being heard and to defend his case or the allegations leveled against him before Supreme Judicial Council. The final prerogative to admit or preliminary reject the complaint or application or reference as per language and spirit of the relevant Constitutional provisions is only vested with the Supreme Judicial Council.

Supreme Judicial Council simultaneously has the mandate and prerogative after the preliminary proceedings or at any stage to issue show cause notice while regulating its further procedure against whom a complaint or information or reference has been received, and if satisfied with the response, the Council may drop the proceedings or otherwise can continue the proceedings till issuance of its final recommendations to the President of Pakistan under Article 209 (6) of the Constitution.

While proceedings initiated by the Supreme Judicial Council under Article 209 of the Constitution, the Attorney General of Pakistan shall act as a Prosecutor or the Council may think otherwise in any of the given situation. The provisions of Article 204 of the Constitution relating to contempt of Court shall also apply to the proceedings of Supreme Judicial Council as they apply to the Supreme Court and a High Court as mentioned in Article 210 (2) of Constitution.

The Supreme Judicial Council under Article 210 of the Constitution shall have the same power of the Supreme Court for the purpose of inquiring into any matter relating to its working or performing its functions, and also shall have the same power of the Supreme Court for issuing such directions or orders for securing the attendance of any person or the discovery or production of any document and any such direction or order shall be enforceable as if it had been issued by the Supreme Court.

The provisions of Article 204 of the Constitution relating to contempt of Court shall also apply to the Supreme Judicial Council as they equally apply to the Supreme Court and a High Court as mentioned in Article 210 (2) of Constitution. Under Article 211 of the Constitution , proceedings of Supreme Judicial Council or its report to the President, and in case the removal is made under clause (6) of Article 209 of the Constitution shall not be called in question in any Court.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com.