Senate polls open ballot: ‘SC likely to declare Presidential Ordinance void’

LAHORE: Despite promulgating the Presidential Ordinance amending the secret ballot procedure for Senate elections to the open ballot, the PTI government faces a near impossible task of sailing through the Supreme Court with the proposed amendment in the Section 122(6) of the Election Act 2017.

The Election Act is subservient to the Constitution, like all the laws of the land, and can’t override the constitutional provisions in Article 226 that specifically requires the Senate elections to be held by secret ballot.

The Article 226 of the Constitution, that governs the procedure of Senate elections envisaged in the Section 122 (6) of the Election Act, requires the two-third majority of the parliament to be amended.

In an immediate response to the Presidential Ordinance, the opposition parties announced to move Supreme Court against this brazen attempt to override the Constitution through changing a subservient law, and according to constitutional experts there is all likelihood that the Ordinance will be declared null and void by the Supreme Court.

The Presidential Ordinance surprised many in the government ranks also as few days ago the government had already been advised by the Supreme Court that the desired open ballot procedure was impossible without constitutional amendment, when it had sent a presidential reference to the Supreme Court to seek its advice. The top court had called in Election Commission’s opinion for assistance, which informed the apex court that open ballot procedure for Senate polls was impossible to achieve without constitutional amendment.

Veteran constitutional expert and former president of Supreme Court Bar Association, Ali Ahmad Kurd said the hasty promulgation of Presidential Ordinance without waiting for the Supreme Court judgment on the reference seeking legal cover for switching to open ballot without amending the Constitution, the government had itself sent a few days ago to apex court, showed utter confusion among government ranks and its legal wizards felt time was slipping out of their hands.

He said there was no course available to the government to change the secret ballot without amending the Article 226 of the Constitution. He said the government had committed another violation of the Constitution by promulgating the Presidential Ordinance while the parliament was in session.

Article 226 of the Constitution specifies that “All elections under the Constitution, other than those of the prime minister and the chief ministers, shall be by secret ballot. The constitutional provisions are protected against the arbitrary amendments by Article 239, which lays down the procedure for a constitutional amendment that requires two-third majority of both Houses to take effect as specified in the sub clause (1) of this article. In addition to that, the clause (5) of the Article 239 also protects the constitutional provisions against any judicial activism clearly specifying that “No amendment of the Constitution shall be called in question in any court on any ground whatsoever,” meaning thereby that merely amending the Election Act and attaining any possible judicial affirmation for the Presidential Ordinance requiring open ballot for Senate polls could not override the constitutional provisions guarding the procedure of secret ballot.

Therefore, the proposed amendment in the mechanism of the Senate election through changing the Election Act 2017 hardly holds any water even if the government succeeds to convince the Supreme Court to take up the matter. The Article 239(5) doesn’t even permit any government to knock at any court for relief vis-à-vis any constitutional provision.

And even more interesting is the fact the last clause of the Article 239 – Clause 6 – stresses on the removal of any thinkable doubt over the preceding clauses of the same article. It dilates upon the immense power of the two top august houses, saying that there is no limitation whatsoever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution. So, the government’s attempt at banking on the election rules is merely a daydream or wishful thinking of the constitutional experts in its ranks, for all other rules applied in the country are subservient to the rules prescribed in the Constitution. Even if an amendment is called in question, and the court takes it up, it can only interpret the law, implying referring back the matter to the appropriate august houses for the required constitutional amendment.