• Move conditional on SC verdict on presidential reference
• Experts term it ‘presumptive legislation’

ISLAMABAD: Two days after abandoning its efforts to get the constitution amendment bill for an open Senate vote passed through the National Assembly and without waiting for a Supreme Court’s decision on the presidential reference on the issue, the government on Saturday promulgated an ordinance amending the Elections Act 2017 for the use of an “open and identifiable ballot” in the coming and future Senate elections.

The text of the one-page ordinance titled the Elections (Amendment) Ordinance 2021 was released by federal Minister for Information and Broadcasting Shibli Faraz through his official social media account on Twitter, hours after Pakistan Peoples Party chairman Bilawal Bhutto-Zardari declared at a press conference that any such move by the government would be “illegal and unconstitutional” and would amount to influence the Supreme Court.

The government had on Friday obtained the federal cabinet’s approval of the ordinance through circulation.

Interestingly, the text shows that the ordinance has “come into force at once”, but an amendment to Section 122 of the Elections Act 2017 has made it conditional on the final decision of the Supreme Court on the presidential reference.

It says: “Provided that in case the Sup­reme Court of Pakistan gives an opinion in Reference No. 1 of 2021 filed under Article 186 of the Constitution, that elections for the members of Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March 2021 and thereafter shall be conducted by the Commission (Election Commission of Pakistan) through open and identifiable ballot.

“Provided further that after the elections for members of Senate, if the head of the political party requests the Commission to show the ballot cast by any voting member of his party, the Commission shall show the same to the head of the political party or his nominee,” the text says.

“Whereas it is expedient further to amend the Elections Act, 2017 (XXXIII of 2017) and whereas the Senate and the National Assembly are not in session and the president of the Islamic Republic of Pakistan is satisfied that circumstances exist which render it necessary to take immediate action, now, therefore, in exercise of the powers conferred by Clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the president is pleased to make and promulgate” the ordinance, says the text at the beginning justifying the government’s move despite the fact that the president had himself prorogued the sessions of both the houses of parliament only a day before.

A member of the federal cabinet had told Dawn that the government wanted promulgation of the ordinance before the announcement of schedule for the Senate elections. The schedule is likely to be announced on Feb 11.

“We have very little time to make amendment to the Constitution and because of this the ordinance is being promulgated,” the minister had said on Friday.

On the other hand, several legal experts termed the promulgation of the ordinance as “presumptive legislation” since the Sup­reme Court has not yet decided the presidential reference which the government has filed to seek interpretation of Article 226 of the Constitution and explore the possibility of open balloting for Senate elections.

Senior lawyer Hamid Khan said being an ordinary law, an ordinance could never overrule the constitution which was a supreme legislation. He said promulgation of the ordinance at a time when the Supreme Court was still examining the matter and the National Assembly had already rejected the move was “beyond comprehension”. He believed that it was not a proper time and situation to promulgate the ordinance.

Advocate of the Supreme Court Kashif Ali Malik said apparently the ordinance had been issued under the presumption that the Supreme Court might decide the matter within a certain ‘deadline’ or before the Senate elections.

To some extent, he said, it might be seen as influencing the pending proceeding before the apex court.

Law Minister Farogh Naseem could not be contacted for his comment on the development despite attempts.

Last week, the government despite clearly lacking numbers in the parliament had tabled the 26th Constitution Amendment Bill in the National Assembly to hold Senate polls through open vote without trying to take the opposition on board. The opposition parties had not only rejected the move, but lodged a strong noisy protest in the National Assembly when Speaker Asad Qaiser put the bill before the house for a general discussion.

On Thursday, the National Assembly had witnessed a scuffle between the treasury and the opposition members when Deputy Speaker Qasim Suri ran the house one-sidedly and given floors to three federal ministers one after the other providing them full opportunity to speak on the bill and bash the opposition parties.

In November last year, Prime Minister Imran Khan had vowed to hold elections for the upper house of parliament through “show of hands,” and not by secret ballot, to ensure transparency and eliminate “vote trading” and the practice of the use of money.

The opposition alleges that the government is doing all this because it has no control and trust on its lawmakers and fears that they may not vote for the candidates backed by the ruling alliance.

At present, the opposition is in majority in the Senate and the government has become desperate as many times a legislation passed by the National Assembly was rejected by the Senate.

As many as 52 senators, 50 per cent of the 104-member house, are set to retire on March 11 after completing their six-year tenure.

However, this time there will be no polling for the four seats of the erstwhile Federally Administered Tribal Areas because of its merger with the Khyber Pakhtunkhwa province. Therefore, polling will be held to elect 48 senators — 12 each from KP and Balochistan, 11 each from Punjab and Sindh and two from Islamabad.

Polling will be held to elect seven members on general seats, two on seats reserved for women and two technocrats’ seats in the four provinces. Besides this, the election for one minority seat each in KP and Balochistan will also be conducted.

When the MPAs will elect senators from the provinces, members of the National Assembly will be voting to elect a senator on general seat and another on a woman seat from Islamabad.

Malik Asad also contributed to the report

Published in Dawn, February 7th, 2021