Open ballot in Senate elections: Presidential ordinance described as unprecedented

ISLAMABAD: The presidential ordinance issued on Saturday to hold the upcoming Senate elections through an open ballot has been termed by independent legal brains as “unprecedented.” Unusually, the ordinance will be subject to the outcome of the reference the government has itself filed in the Supreme Court.

During a chat with The News, eminent constitutional expert and former Senate Chairman Barrister Wasim Sajjad said the move “doesn’t make any sense.” He believes that when the Election Commission of Pakistan (ECP) has taken a clear stand in its synopsis submitted to the Supreme Court -- that the Senate polls can’t be held through an open ballot and have to be conducted through a secret vote as required by the Constitution -- it would not implement any such ordinance.

After all, Wasim Sajjad said, it is the ECP and not the government that has the constitutional and legal powers to arrange the Senate polls. He said such legislation, which is subject to the outcome of the presidential reference being currently heard by the apex court, is unprecedented and has not been heard of before. He said that when the government has on its own filed the reference in the Supreme Court invoking its advisory jurisdiction, it should have waited for the findings of the highest judicial forum. Wasim Sajjad said the government can issue a presidential ordinance at any time except when the National Assembly or the Senate is in session.

Prominent lawyer Kashif Malik told The News that the government wants to get the Senate polls held on the force of a stay order that it aims to get from the presidential ordinance. “As a rule, litigants seek stays from the courts with the request that such orders will be enforceable subject to and till the final outcome of their main pleas. If the ultimate decision favours them, the implementation of the stay will be valid and justified. But if it doesn’t, what they have done on the force of the temporary injunction has to be undone,” he said.

He explained that if the Senate elections are held through an open ballot on the force of the ordinance, and the Supreme Court’s judgment happens to be against the government’s plea, the polls would have to be cancelled for a fresh electoral exercise --which will obviously be a disastrous consequence. However, the electoral process will turn out to be valid if the ruling supports the open vote.

Kashif Malik said this kind of ordinance is a mockery of the law and such legislation by the executive was unheard of. “There is not a single precedent anywhere to show that an ordinance had been promulgated subject to any such outcome.”

The lawyer said that it was unique that on the one hand the government has approached the apex court for its advice, arguing that the open ballot is constitutionally permitted, and on the other, it has issued the ordinance to implement the same decision without waiting for the judicial guidance. The move is seemingly meant to influence the court, he said, and added that it also raises questions about the supremacy of parliament and the Supreme Court.

A course that the government can adopt, he said, is to withdraw the reference from the apex court and then issue the ordinance providing for the open ballot.