ISLAMABAD: The Pakistan Bar Cou­n­cil (PBC) — the mother regulatory body of lawyers — on Thursday asked the Supreme Court to strike down the Elections (Amen­dment) Ordinance, 2021, which seeks to hold the Senate elections on March 3 through open ballot by amending the Elections Act, 2017.

In a petition filed through Advocate Mansoor Usman Awan, the PBC sought a declaration from the Supreme Court that a contingent legislation that hinges upon the determination of its constitutionality was impermissible and unconstitutional.

The petition also requested the court to declare that the ordinance was bad in law for being issued during the pendency of a presidential reference on the same question before the apex court. Thus the ordinance pre-empts the outcome of the pending proceedings before the apex court.

It pleaded that the ordinance was ultra vires of the Constitution as the president exercised his power under Article 89 of the Constitution without the prerequisites being satisfied.

The petition pleaded that the ordinance was a fraud on the Constitution as powers under Article 89 to promulgate ordinances cannot be exercised as parallel law-making power and to bypass the constitutional framework.

It sought a declaration from the court that the federal government was not entitled to exercise the powers under Article 89 to amend sub-constitutional legislation that in essence has the effect of introducing amendments to the Constitution.

PBC says move pre-empts outcome of pending proceedings before the court

Besides, the ordinance was unconstitutional as it creates a permanent effect and undermines parliamentary supremacy and control through temporary legislation, the petition argued, asking the court to strike down the ordinance for being unconstitutional and restrain the government and the Senate from taking action in pursuance to the ordinance during pendency of this petition.

The petition argued that the Supreme Court was empowered to examine the legality of the ordinance and ascertain if the prerequisites for exercise of extraordinary legislative power of the executive were present or not.

The sole reason for promulgating the ordinance publicly cited by the government is to ensure that members do not vote contrary to any directive issued by the parliamentary party to which he belongs, the petition argued. But it must be kept in mind that the Constitution itself envisages such circumstance and clearly stipulates the consequence of such action under Article 63A.

In view of this constitutional scheme, there is no immediate need or circumstance that requires passage of the ordinance.

The petition reminded that the government had last week placed the Constitution (Twenty Sixth Amendment) Bill, 2020, before parliament, but the bill could not be passed by the National Assembly and the disapproval of the legislature was publicly reported.

The petition contended that the president under Article 89 was not a parallel power of legislation. It is power exercisable only when both houses of parliament are not in session and it has been conferred ex-necessitate in order to enable the executive to meet an emergent situation, the petition said.

Moreover, the law made by the president by issuing the ordinance is of strictly limited duration, it said, adding that since the government’s attempt to amend the Constitution failed in parliament, it is apparent that the executive in essence deems Article 89 as a parallel law-making power and despite the strong disapproval shown by the lawmakers, the executive in blatant disregard of the spirit of the Constitution promulgated the ordinance to indirectly achieve what it was unable to achieve directly by introducing the constitution amendment.

Such exercise of authority by the executive is patently illegal and unconstitutional since the government knowing fully well that in order to hold open ballot elections constitutional amendment is required, introduced the Constitution (Twenty Sixth Amendment) Bill, 2020 in parliament.

Since that attempt was unsuccessful, the president now has promulgated the ordinance that amends the sub-constitutional legislation i.e. Elections Act, 2017 to hold elections by open ballot without introducing the required constitution amendment.

The superior courts have disapproved such practice of the executive and dec­la­red it to be a fraud on the Constitution, the petition reminded.

Published in Dawn, February 12th, 2021