ISLAMABAD: The Jamiat Ulema-i-Islam-Fazl (JUI-F) has opposed the presidential reference seeking open ballot for the coming Senate elections, arguing that it was not moved in good faith and amounted to bypassing parliament.

In a synopsis submitted to the Supreme Court through senior counsel Kamran Murtaza, the JUI-F contended that the reference carried an inference that the Senate elections were not held under the Constitution.

The question implies that the Senate elections are held under the Elections Act 2017, which was enacted in pursuance of Article 222, read with Entry 41, Part 1 of the Fourth Schedule of the Constitution, which also provided for the election of the President.

Apex court told reference infers as if elections are not held under Constitution

The synopsis alleged that the President’s conduct had been questionable ever since he assumed office and it had been established by now that he misused his office time and again to promulgate ordinances. Article 89 of Constitution places a bar on issuance of ordinances when the National Assembly and Senate are in session.

Senator Raza Rabbani also filed a synopsis and requested the court to answer the reference in the negative since the Senate elections, like others, were held under the Constitution.

Advocate Mudassir Hasan, through his counsel Hassan Irfan Khan, opposed the reference whereas Sindh Advocate General Salman Talibuddin sought one week to submit a reply on behalf of the provincial government.

Advocate Qamar Afzal supported the reference.

The JUI-F argued in its synopsis that since the Pakistan Tehreek-i-Insaf-led government did not have a majority in the Senate, it had resorted to issuing ordinances to bypass parliament. Ironically enough, the party observed, the reference speaks about the nation’s confidence in the democratic process.

The President’s conduct was also discussed when he filed a reference against a sitting Supreme Court judge, although the majority view held that malice could not be established behind the filing of the reference even though it was set aside.

The JUI-F argued that the reference had exceeded the jurisdiction of the Constitution’s Article 186 by glorifying open ballot and demeaning secret ballot.

Under Article 186, the Supreme Court can give an opinion on a question of law referred to it, but it cannot make an order or give a finding based on merits and demerits of the case, the party argued.

The reference draws a comparison between the Senate polls and local government elections as the apex court held that the Sindh government was competent to make laws to hold elections either by show of hands or secret ballot.

The reference contradicts itself by stating that the elections for the Senate chairman and deputy chairman, as well as those for speakers and deputy speakers of the National and provincial assemblies, are to be held by secret ballot even though, like the Senate elections, such a requirement is not expressly provided anywhere.

A case has been made that disqualifications under Article 63(1)(a) to (o) of the Constitution happen under the Constitution while disqualifications under Article 63(1)(p) happen under any law in force for the time being.

It means if the law is amended or repealed, the disqualification under Article 63(1)(p) could be removed. Hence it may be a disqualification under Article 63(1)(p) but it’s not like the other disqualifications under Article 63(1)(a) to (o) which are directly a result of the Constitution, argues the synopsis.

“But how this analogy is applicable to Senate elections has not been explained. Perhaps it is being reasoned that although Senate elections have been mentioned in Article 59 of the Constitution, the requirement of open or secret ballot is a mandate of the legislature,” the synopsis stated.

The JUI-F pleaded before the apex court that the presidential reference be held as non-maintainable, a result of malice and an attempt to undermine parliament.

AG’s contention

Attorney General Khalid Jawed Khan explained that through this reference the President had requested interpretation of the Constitution with an emphasis on Article 226 as it falls within the exclusive domain of the Supreme Court.

The specific question for consideration in this reference is the scope of Article 226 and whether a reference to “elections under the Constitution” made here included elections for senators to be conducted under the Elections Act of 2017.

In reply to a query about the applicability of Article 66 of the Constitution, the AG argued that this provision had no relevance in the present context as no question of any liability whatsoever of any member of parliament for any utterance or vote given by him arises here.

Referring to the maintainability and scope of the reference, the AG recalled that it was last discussed by a 10-member bench of the Supreme Court in 2005 after the Hisba bill was passed by the NWFP Assembly.

The judgements, as well as opinions rendered by the Supreme Court and by other courts, were considered and it was ruled that the opinion of the apex court on a reference has a binding effect.

The court also ruled that no embargo could be placed on the President’s authority to seek the court’s advice on a question of law.

Moreover, the question related to future legislation cannot by itself be regarded as valid objection. There are cases in which references were made even to consider proposed amendments and in one case reference was filed even before the bill was tabled in parliament and it was held that it makes no difference that the bill was pending, since the President was competent to make a reference at any stage.

The attorney general recalled that the Supreme Court even took up the matter of extending recognition to Bangladesh during the early 1970s and gave an observation that a resolution might be moved in the National Assembly.

The AG said that except for a presidential reference in 2012 on revisiting the murder trial of former prime minister Zulfikar Ali Bhutto, all references were answered by the Supreme Court.

The issue relating to elections for the Senate even when raised by an individual has been held by the Supreme Court to be a question of public importance, Khalid Jawed contended.

Published in Dawn, January 12th, 2021