EDITORIAL: The President’s reference to the Supreme Court seeking its opinion on the mode of holding the Senate elections seems set for a protracted legal battle, judging from the synopses and arguments presented so far in the apex court. For example, the Jamiat-i-Ulema-i-Islam-Fazl has opposed the reference seeking open balloting for the coming Senate elections, arguing that it has not been moved in good faith and is aimed at bypassing parliament. It further contends that the reference carries an inference that the Senate elections are not held under the Constitution but under the Elections Act 2017. Senator Raza Rabbani in his synopsis filed before the Supreme Court requests it to answer the reference in the negative since the Senate elections are, in fact, held under the Constitution (implying a secret ballot). Advocate Mudassir Hasan too has opposed the reference, arguing that it did not reflect bona fide intentions since it was moved at a time when the 26th Constitutional Amendment related to the issue was pending before Parliament. On the other hand, Advocate Qamar Afzal has supported the reference. Both these gentlemen have requested they be made party to the proceedings in the Supreme Court. Sindh Advocate General Salman Talibuddin has sought one week to submit the response of the Sindh government. Attorney General Khalid Jawed Khan has argued before the Supreme Court that through this reference, the President has requested interpretation of the Constitution with emphasis on Article 226, a task that falls within the exclusive domain of the apex court. Further, that the specific question for consideration is the scope of Article 226 and whether the reference to “elections under the Constitution” in it includes elections for Senators that are to be conducted under the Elections Act 2017. Arguing for the admissibility of the reference, the Attorney General referred to past judgements of the Supreme Court and other courts to underline that the opinion of the apex court on a reference does indeed have a binding effect. The Supreme Court, he went on, also ruled that no embargo could be placed on the President’s authority to seek the court’s advice on a question of law.
The arcane legal and constitutional arguments are of course for the Supreme Court to examine. However, it does appear somewhat strange that a government that has moved the 26th Constitutional Amendment and a Bill to amend the Elections Act 2017, both aimed at open balloting for Senate elections, appears to have ‘abandoned’ these in favour of the reference to the Supreme Court. One possible reason for this may be that the government does not enjoy a two-thirds majority in Parliament, which rules out the passage of any constitutional amendment, nor enjoys good relations with the opposition, a necessary condition perhaps for even ordinary legislation such as the amendment to the Elections Act 2017. It may also be kept in mind that the Senate elections are looming in March 2021, if not earlier, as the government would prefer. Chief Justice of Pakistan Gulzar Ahmed stated after hearing the detailed submissions of the Attorney General that the issue would need to be addressed keeping in mind the whole scheme of the Constitution, not bits and pieces. Beyond this, it is simply inexplicable how the Senate elections held under proportional representation through a single transferable vote can be conducted through open balloting or a show of hands. Observers are still puzzled why the government is in such a hurry to hold the Senate elections earlier than March and that too through open balloting. Whatever their considerations, it must be kept in mind that democracy requires careful nurturing, even in an established and mature democracy like the US, as outgoing President Donald Trump’s shenanigans regarding storming of Capitol Hill by his supporters indicates. For a democracy still to sink firm roots such as ours, greater care is required that we follow the letter and spirit of the law and Constitution if a better outcome is sought free of personal or partisan vested interest.
Copyright Business Recorder, 2021