Presidential reference on Senate polls 'colourable exercise' of power: SHCBA

The bar noted that the reference was mala fide and made for ulterior or collateral motive


Hasnaat Malik January 19, 2021

ISLAMABAD:

The Sindh High Court Bar Association (SHCBA) on Tuesday stated that presidential reference on Senate polls was a 'colourable exercise' of power designed to advance the political objectives of the ruling party Pakistan Tehreek-e-Insaf's (PTI).

The PTI government filed a presidential reference last year with the apex court seeking its guidance regarding amending the Election Act, 2017 through an ordinance to allow the use of open-ballots in the upcoming Senate elections.

The reference sought an interpretation of Article 226 that states that all elections under the Constitution, other than those of the prime minister and chief ministers, shall be held through secret ballots.

In its written statement through its counsel, Salahuddin Ahmed, the SHCBA stated that the “[Supreme] Court should refrain from rendering advice in a matter that would inevitably embroil it in political controversy and damage its reputation and credibility”.

The bar noted that the reference was mala fide and made for an ulterior or collateral motive.

The statement further added that "a perusal of the reference, its timing only a few weeks before the upcoming Senate elections, the prevailing political scenario and the inability of the government to pass legislation in Parliament, and the oral arguments of the Attorney General [‘AG’] wherein he repeatedly emphasised that the changes to the balloting system in Senate elections could be made by Ordinance as well as by Act of Parliament; support the conclusion that the Reference has not been made honestly, with bona fides and for the purposes envisaged under Article 186 of the Constitution".

“In any event, irrespective of any question of mala fides or collateral purpose behind the reference, the court may nonetheless refuse to render advice if it considers it would be more appropriate to deal with the questions raised in the reference when they arise in an actual case; or where it considers the rights of any potential parties might be prejudiced if the court gives its opinion in advance; or where it considers that advising the government in the matter may embroil the court in a heated political controversy and detract from its public reputation and credibility,” the SHCBA further contends.

The statement maintained the AG’s contention that members of the assemblies should be treated as the proxies or trustees of their parties was also "patently contrary to the scheme of our Constitution and to the very concept of the Westminster model of parliamentary constituency-based elections".

Read More: JUI-F opposes presidential reference on Senate open-balloting in SC

“In our system, like that followed in the UK and many other democracies around the world, a member of parliament is not supposed to be a nominee and mere rubber-stamp of his party. He is supposed to exercise his individual discretion and conscience and independently participate in the deliberative process in parliament,” the bar said in its statements.

It added that ultimately, the parliamentarian represents his constituents and not a political party albeit his political allegiance maybe with one party or the other.

"Thus, it is not unusual to see a representative in legislatures around the world voting against their own party (see, for example, the votes of Republicans in favour of US President Trump’s impeachment or the votes of many parliamentarians from both major UK parties against their party’s stand on the Brexit issue)," the SHCBA added.

“That is the very purpose of having a deliberative House. If our constitutional scheme envisaged a more party-dominated legislative process; our Constitution would not have mandated independent, first-past-the-post constituency-based elections,” the SHCBA stated.

“Instead it would have provided for proportional representation for parties in parliament to be filled through a list of party nominees,” the bar maintained.

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