Senate poll reference has an ulterior motive: bar

SHCBA asks SC to avoid political controversy by not rendering advice

ISLAMABAD:

The Sindh High Court Bar Association (SHCBA) has contended that the presidential reference on Senate polls is a “colourable exercise” of power designed to advance the “political objectives” of the ruling PTI.

“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," SHCBA said in its written statement through its counsel and president Salahuddin Ahmed.

A five-judge larger bench headed by Chief Justice Gulzar Ahmed is hearing the presidential reference case.

The bar noted that the reference was “mala fide” and designed for an “ulterior/collateral” motive.

The statement further maintained 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 supported the conclusion that the reference had not been made honestly, with bona fides and for the purposes envisaged under Article 186 of the Constitution.

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

“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.

“Ultimately, the parliamentarian represents his constituents and not a political party albeit his political allegiance may be with one party or the other.”

The SHCBA noted that it was not unusual to see representative in legislatures around the world voting against their own party.

“In both the UK and the US, a parliamentarian may cross the floor and vote with the other party without any consequences for his seat whatsoever. That is the very purpose of having a deliberative House,” the statement said.

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