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January 26, 2021

Sindh also opposes Senate polls by open ballot

Top Story

January 26, 2021

ISLAMABAD: The Sindh government Monday opposed the desire of the federal government of holding the upcoming Senate elections through an open ballot, and prayed the Supreme Court to decline offering its opinion on the matter.

The provincial government submitted that the presidential reference would be engaging the court with questions based on political, social and moral considerations alone, which do not, in reality, have anything to do with the Constitution.

On Dec 23, the federal government had sought the opinion of Supreme Court on holding the upcoming elections for the upper house of the Parliament (Senate) through open ballot and show of hands.

President Dr Arif Alvi, after approving the proposal of the prime minister, had filed a reference in the SC under Article 186 of the Constitution, seeking its opinion on holding the upcoming Senate elections through open ballot and show of hands.

The reference claimed that it would promote transparency and accountability in the electoral process, acknowledge respect for the choice and desires of the citizen voters, strengthen political parties and their discipline which is essential for parliamentary democracy, discourage floor-crossing, use of laundered money for vote buying in elections, which grossly insult the mandate of the people.

In pursuance of the apex court order, the Sindh chief secretary submitted its written synopsis through advocate general Salaman Talibuddin, praying to decline offering its opinion sought by the president of Pakistan under Article 186 of the Constitution on holding the Senate election by open ballot or show of hand.

Undoubtedly, the Senate is elected under the Constitution and the Elections Act merely provides the procedure for holding the election, as mandated by Article 218 of the Constitution.

“Therefore, any provisions of the Elections Act which regulate the conduct and manner of the Senate election must comply with the constitutional requirement of voting by secret ballot prescribed by Article 226 of the Constitution,” the Sindh government submitted.

Earlier, the Election Commission of Pakistan (ECP) had also opposed the desired plan of the government to hold Senate elections on open ballot without an amendment to the Constitution.

The ECP had contended that the elections to the upper house of the Parliament (Senate) comes under the Constitution, hence for the purpose of holding of the said election through open ballot, Article 226 of the Constitution is required to be amended in this regard.

The Election Commission had submitted that Article 59, 219, 224 (3) & (5) of the Constitution provide for elections to the Senate and, ‘Election of the Senate is election under the Constitution’ for the purposes of Article 226 of the Constitution.

The Sindh government contended that the court would be engaging with questions based on political, social, and moral considerations alone, which do not, in actual fact, have anything to do with the Constitution.

“It is recognised that as an aid in decision making, judges do assess practical choices against multiple criteria, such as public policy and legal expediency, in addition to the requirement to do justice. However, in the exercise of advisory jurisdiction as demanded by the reference, the court would be engaging with questions based on political, social, and moral considerations alone, which do not, in actual fact, have anything to do with the Constitution,” the Sindh government contended.

It submitted that the reference is of speculative and hypothetical in character in as much as it is based on assertions, without proof, historical or current, of horse-trading and the alleged need for electrical reform.

“It would be difficult for the court, therefore, to offer an opinion on the question without also offering an unsubstantiated critique of the current electoral system,” the provincial government submitted, adding that in the absence of a real and live controversy, which may only properly arise in adversarial proceedings, offering an opinion on the state of the electoral system as such in advisory jurisdiction would not be competent.

It further submitted that as mentioned in the reference itself, the questions concerning Article 226 of the Constitution and whether Senate elections are ‘under the Constitution’ have been discussed in several precedents and decisions have been offered by the courts accordingly.

“Therefore, on the basis that the issue forming the subject of the reference has already been adjudicated, the Supreme Court in its advisory jurisdiction may decline to answer the reference,” it pleaded.

The Sindh government further contended that the interpretation of Article 226 being proposed in the reference as the correct view is essentially being sought in order to permit the legislature to amend the Elections Act.

It submitted that in effect, the presidential reference is asking the court to opine on proposed legislation which has not yet received the assent of the parliament.

“This means it has not gone through the prescribed legislative process which includes, inter alia, parliamentary debates and revisions,” the Sindh government contended, adding that offering an opinion on the question will then not only hamper the constitutional process of the Parliament but also subvert the functions and privileges of the members of Parliament, who are entitled to make a determination as to the proposed amendment to the electoral statute.

Citing some examples of countries, the Sindh government contended that the invocation of advisory jurisdiction has been discouraged by the courts. For instance, in the United States, where a separate advisory jurisdiction function is not present, Muskrat v. United States (1911) 219 US 346, held that the court should not express any opinion as to the validity or wisdom of any proposed legislation unless it arises by way of a controversy submitted for judicial determination.

Similarly, in Canada, it submitted that he Supreme Court has been empowered to exercise advisory jurisdiction, it was observed in AG of British Columbia v. AG of Canada (1949) AC 153 (162) that questions put forward in this jurisdiction cannot be answered satisfactorily.

Not only would future litigants be prejudiced by the court, laying down principles without any reference to actual facts, but it may turn out to be practically impossible to define the principles without ascertainment of the exact facts to which it is to be applied,” it submitted

It contended that unless the court is somehow able to interpret Article 226 of the Constitution and respond to the question without engaging with the overtly political grounds for the reference, to give an advisory opinion in response to the reference would not be consistent with judicial propriety.

“It would also circumvent the original jurisdiction of the High Courts under Article 199 and the Supreme Court under Article184 of the Constitution, to which any issue regarding the validity of the proposed amendment to the Elections Act may be submitted,” the Sindh govt contended.

The provincial government submitted that there is an existing constitutional provision which deals with, inter alia, horse-trading, adding that Article 63A of the Constitution, as amended by the 18th Amendment in 2010, essentially restricts the voting power of members of the Parliament or provincial assemblies by making them bound by the decision of the party head.

“It is wholly improper to suggest, as the reference does, that the evil of horse-trading can only be remedied by an interpretation of Article 226 by this court that will allow voting by open ballot in the Senate through an amendment to the Elections Act,” the Sindh government contended.

It submitted that the reference has been filed on the ground of political expediency and the question can, therefore, not be termed a “question of law” adding that in the circumstances, the moral suitability of the question for an opinion under the advisory jurisdiction of Article 186 of the Constitution is questionable and it is the government’s position that for reasons of judicial propriety, the court should decline to offer the opinion.

“Without prejudice to the foregoing, it can safely be discerned from the discussion on the various provisions of the Constitution above that elections to the Senate are elections “under the Constitution” as expressed by a plain and ordinary reading of Article 226 of the Constitution,” the Sindh government submitted.

It contended that undoubtedly, the Senate is elected under the Constitution and the Elections Act merely provides the procedure for holding the election, as mandated by Article 218 of the Constitution.

“Therefore, any provisions of the Elections Act which regulate the conduct and manner of the Senate election must comply with the constitutional requirement of voting by secret ballot prescribed by Article 226 of the Constitution,” the Sindh government concluded.

The National Assembly speaker, Senate chairman, Government of Punjab, Khyber-Pakhtunkhwa (KP), Balochistan as well as Islamabad Capital Territory (ICT) had endorsed the presidential reference seeking opinion of the apex court of holding Senate election through open ballot or show of hands.