File photo. Aamir Qureshi—AFP
Ordinance contains clause that will make it redundant if Supreme Court says Senate elections fall under scope of Article 226 of the Constitution
The Government of Pakistan on Saturday promulgated an ordinance to secure open vote in the upcoming Senate elections. The Elections (Amendment) Ordinance, 2021, however, contains a proviso that it will only come into effect if the Supreme Court of Pakistan decides in favor of a presidential reference seeking a legal opinion on the situation.
“Provided the 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 through open and identifiable ballot,” the ordinance seeks to add to the Elections Act. It adds that after the Senate polls, any head of a political party would have the right to seek information on the ballot of any voting member of their party.
Government spokespersons have claimed they had to issue the ordinance prior to any ruling by the Supreme Court because the Elections Act, 2017 could only be amended before the Election Commission of Pakistan issued the schedule for the Senate polls—expected for Feb. 11. If the government had waited till after the schedule was issued, they say, the law would only apply to subsequent elections and not this year’s polls.
The opposition has vehemently opposed the promulgation of the ordinance, noting that both Houses of Parliament were in session until just two days ago, and the move is in violation of Article 86 of the Constitution. PPP Senator Sherry Rehman, in a press conference, slammed the speedy issuance of the ordinance an “attack on the Constitution and Parliament.” She went on to note that the government lacked a two-thirds majority to pass a constitutional amendment, adding that the government had failed to sit with the opposition to debate the legislation.
Legal observers have also criticized the government’s timing, claiming that promulgating the ordinance in advance makes controversial any decision by the top court; if the court rules in favor of the government, it would be perceived as acting hand-in-glove with it, while if it rules against, it could be seen as boosting the opposition. Echoing comments by the Supreme Court, they have also questioned what consequences, if any, would result for a lawmaker voting against their party.
President Alvi, last year, approved Prime Minister Imran Khan’s proposal to seek the Supreme Court’s legal opinion on holding Senate elections through open ballot. Sources have claimed that the decision to promulgate the ordinance while the matter is still pending in court was advised by Attorney General Khalid Jawed Khan, and has been endorsed by the prime minister.