ISLAMABAD: The Sindh High Court Bar Association (SHCBA) on Friday told the Supreme Court that President Dr Arif Alvi had wrongly and prematurely invoked the advisory jurisdiction of the Supreme Court in a reference filed by him, seeking the apex court’s opinion on holding the upcoming Senate elections through an open ballot and show of hands.

Headed by Chief Justice of Pakistan Gulzar Ahmed, a five-judge bench is deliberating upon the presidential reference to answer a question posed by President Alvi if the condition of secret ballot under Article 226 of the Constitution will apply to Senate elections or not.

The SHCBA said the reference was allegedly purposefully designed to thrust the apex court to the forefront of a nakedly political dispute.

“Far from seeking the advice of the apex court, the reference actually seeks to gain the endorsement of the court for the political objectives and designs of the ruling party and to preempt possible legal challenge to the same,” argues the SHCBA in a written synopsis furnished before the Supreme Court.

Says case has been purposefully designed to thrust apex court to forefront of a nakedly political dispute

Filed through senior counsel Salahuddin Ahmed, the SHCBA argued that the reference allegedly was an attempt on the part of the president to effect a constitutional amendment under guise of an advisory reference. As such, the reference is allegedly mala fide in fact and law and wholly without jurisdiction.

Therefore, the Supreme Court should, in any event, resolutely decline to answer such reference, the synopsis emphasised.

The SHCBA is of the view that on merits elections to Senate are indisputably elections under the constitution and as such, the requirement of secret balloting in Article 226 is fully applicable to Senate elections and changing this requirement to allow open balloting is impossible without a constitutional amendment, the synopsis said.

The SHCBA explains that the advisory jurisdiction of the Supreme Court under Article 186 can only be invoked if certain preconditions are met like the president must consider that it was desirable to obtain the opinion of the apex court on any question of law, which he considers of public importance.

These preconditions are dependent on the consideration of the president, it said, adding clearly it is a matter for the court to decide. “So if the court determines that the reference does not present any real question of law, it may refuse to entertain the reference,” the synopsis said.

“In any event, even if the president lawfully invokes the advisory jurisdiction — it is still not obligatory for the Supreme Court to render its advice,” the SHCBA says, adding the separation of powers and independence of the judiciary have been held by this court as being among the essential features of the constitution.

Allowing the government to seek judicial advice before it initiates any executive or legislative action is an exception to the principle of separation of powers, it said.

Article 186 (2) must be read in a manner that concords with the essential features of the constitution and the term “shall” used therein is to be read as “may”. Thus, the court may answer a reference by reporting its opinion that the question posed is not fit, suitable or ripe for reply under the advisory jurisdiction, the SHCBA says.

The synopsis urged the court not to entertain the present reference or, alternatively, should not render its advice since the question posed by the reference is premature, academic and hypothetical.

The SHCBA pleaded before the court to render the opinion that the requirement for secret ballot in Article 226 of the constitution is fully and squarely applicable to Senate elections under Article 59 of the Constitution.

The logical outcome of the interpretation favoured by the Attorney General is that the Article 226 prescription of secret ballots cannot be applied to the general elections to the National and provincial assemblies.

As such, the secrecy of balloting for general elections too could be abolished merely by promulgating an amending ordinance, the SHCBA feared.

Realising the havoc such an interpretation would have in respect to the sanctity of the electoral process and the implications it would have for voter intimidation/coercion/undue influence; it said, adding the government attempted to read the Articles 51 (6) and 106 (3) requirement for a direct and free vote as including a requirement for secret ballot.

Needless to say, the requirement for a direct and free vote does not necessarily mean that the vote is also to be secret. Indeed, in the Indian Constitution, the requirement of free vote has been held as not necessarily meaning secret vote.

It is interesting that while the government wishes to adopt an artificially strained and restrictive interpretation of the words “under the constitution” in Article 226 so as to remove the requirement for secret balloting in respect of Senate elections; it is simultaneously prepared to liberally read words into Article 51 (6) and 106 (3) in order to introduce a requirement for secret balloting even though it finds no mention there, the SHCBA said.

Published in Dawn, January 22nd, 2021