Sindh Bar deplores President’s Reference for Senate elections

By Nasir Mahmood

The Sindh High Court Bar Association, Karachi has condemned the Reference filed by President of Pakistan under Article 186 of the Constitution seeking opinion (rather, endorsement) of Supreme Court on Government’s plan to amend the Elections Act 2017 through an Ordinance to allow Senate elections to be held through show of hands instead of secret ballot.

The President Salahuddin Ahmed and Honorary Secretary Muhammad Omar Soomro in a joint statement said SHCBA is confident that Supreme Court of Pakistan shall not allow itself to become embroiled in a matter that is designed to further self-serving political interests.

They said that President’s power to invoke the advisory jurisdiction of Supreme Court under Article 186 is reserved for answering genuine “questions of law” of “public importance”. Invoking this jurisdiction to settle blatantly political disputes in a highly charged atmosphere only embroils the Supreme Court in needless controversy.

Secondly, this Bar is astonished at the President’s mala fide insistence on finding an ambiguity in Article 226 of Constitution that supposedly requires clarification from the Supreme Court. Article 226 provides that “all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.” The clause could not be any clearer or less ambiguous.

The argument in the Reference that elections to the Senate are not elections under the Constitution but merely elections under the Elections Act 2017 would be laughable had it not (sadly) originated from the highest office of State. Article 59 and 224 of the Constitution not only mandate the Senate elections but also determine their timing and the manner in which they are to be held. The Elections Act 2017 only fills in further procedural details. If the absurd contention that Senate elections are not elections under the Constitution is taken to its logical extreme; it would mean that the Government could do away with Senate elections altogether merely by issuing an Ordinance!
This Bar recognizes there is a genuine debate as to whether voting in the Senate elections should be strictly as per party line/ representation in the provincial assemblies or as per the individual conscience and personal choice of each assembly member. But this question must be settled by parliamentarians after debate in Parliament through a Constitutional Amendment (as was done in the 18th Amendment when the Prime Minister’s and Chief Minister’s elections were exempted from Article 226’s requirement of secret ballot) and not through references to the judiciary and promulgation of clandestine and opportunistic Ordinances, the statement concluded.

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