No one can stop govt from promulgating ordinances, says CJP

Top judge says seems govt passed Senate polls ordinance on speculations; seeks AGP's response

ISLAMABAD:

Chief Justice of Pakistan Justice Gulzar Ahmed on Monday dampened the opposition's hopes when he observed that “no one can stop the government from promulgating an ordinance for introducing open ballot in Senate elections”.

Justice Gulzar made the observation while presiding over a five-judge larger bench that is hearing a presidential reference. Through the reference, the federal government has asked the court if the upcoming Senate election should be held “under the Constitution” or “under the Election Act 2017”.

While the apex court bench has been hearing the reference, the president on Saturday also promulgated an ordinance – the Election Amendment Ordinance 2021 – that paved the way for holding the Senate election through open ballot.

The move sparked outrage with key opposition parties – particularly the PPP, the PML-N and the JUI-F – declaring that the ordinance was based on “mala fide” and has whipped up “a constitutional crisis”.

And on Monday, the JUI-F also moved a civil miscellaneous application (CMA) before the bench hearing the reference. According to the CMA, the ordinance has undermined the judicial proceeding on a pending matter.

It asked the Supreme Court to “declare that the said ordinance is issued with mala fide intent and declare it as an attempt to undermine the judicial proceedings and parliament, and declare it as illogical, irrational, ultra vires to the Constitution, void and having no effect on the Senate election in the interest of justice”.

Also read: Senate open vote decree puts SC in a bind

Appearing before the bench via video link, JUI-F's counsel Kamran Murtaza said the government did not respect the court proceedings and promulgated an ordinance over a matter that was sub judice.

He requested the court to look into the matter. “An ordinance has never been promulgated in the country’s history in such a manner before,” he claimed.

Chief Justice Gulzar, however, noted that “no one can stop a government from promulgating an ordinance.” "[But] I think they [government] have entered the domain of speculations. I don't know how they did it. But no one can stop them." 

Justice Gulzar added that: "If we [SC] declare that the Senate election is under the Constitution [and not under the Election Act 2017] then the [presidential] ordinance will expire."

Justice Ijazul Ahsan, a member of the bench, asked the JUI-F’s counsel as to how the ordinance is a preemptive attempt at legislation, “if anyone who has an objection to it can approach the court?”

Attorney General of Pakistan (AGP) Khalid Javed Khan who was present in the courtroom, argued that the ordinance is not preemptive but a conditional legislation. He wondered how the politicians could term it an attack on the parliament or the top court.

“According to a news report, the government promulgated the ordinance because the Election Commission of Pakistan (ECP) is going to issue the schedule for the Senate elections on February 11,” Justice Ahsan added.

The AGP while supporting the open ballot mode emphasized the role of political parties in the parliamentary system. He said a polluted upper house of parliament is a threat to democracy.

“It is the duty of the Supreme Court to interpret the law for ensuring transparency in the parliament,” he said. Justice Umar Ata Bandial, another member of the bench, observed that “we should be careful when we label politicians.” The bench later issued notice to the AGP over the JUI-F's petition.

The presidential ordinance will enter into force with immediate effect but its enforcement will be subject to the outcome of the presidential reference.

A number of opposition parties, legal experts and media channels have accused the government of “mala fide” and claimed that the government has tried to pressure the SC through the ordinance.