ISLAMABAD   -  The Sindh government Monday urged the Supreme Court of Pakistan to decline giving an opinion on the question in Reference regarding holding of Senate elections either through ‘secret’ or ‘open ballot’.

The Sindh government stated this in its concise statement on the reference submitted through Advocate General. It stated that offering an opinion on the question will not only hamper the constitutional process of the Parliament but also subvert the functions and privileges of the members of Parliament who are entitled to make a determination as to the proposed amendment in the Election Act, 2017.

He submitted that unless the Court is somehow able to interpret Article 226 of the Constitution and respond to the question without engaging with the overtly political grounds for the Reference, to give an advisory opinion in response to the Reference would not be consistent with judicial propriety.

The reply said that it does not appear possible for the apex court to offer an opinion on the question without also offering a determination, whether directly or indirectly, on the alleged failure of parliamentary democracy in Pakistan and the political necessity, as urged in the Reference, for the removal of secret ballot voting in the upcoming Senate elections.

It submitted that the Reference appears to have been carefully drafted so as to frame the question solely as a question of law. However, from the express references to, inter alia, the political reform agenda of the federal government; the Charter of Democracy signed by the heads of the major political parties, PPP and PML-N; the Reference is evidently based on considerations that are entirely political in nature. It is difficult to view therefore that the opinion is being sought as to whether or not Senate elections are included in Article 226 of the Constitution, as a matter of legal interpretation only.

It said that the exercise of advisory jurisdiction as demanded by the Reference, the Court would be engaging with questions based on political, social, and moral considerations alone which do not, in actual fact, have anything to do with the Constitution. “On this basis, the Court may respectfully decline to offer an opinion,” said the reply.

The AG Sindh submitted that the Reference is of speculative and hypothetical character in as much as it is based on assertions, without proof, historical or current, of horse-trading and the alleged need for electrical reform. It would be difficult for the Court, therefore, to offer an opinion on the Question without also offering an unsubstantiated critique of the current electoral system.

It said that Article 59 of the Constitution not only requires members of the Senate to be elected but it also lays down the electoral principles according to which they are to be elected i.e., proportional representation by means of a single transferable vote. The conduct of the Senate elections is the responsibility of the Election Commission, by empowering it under Article 218 of the Constitution to make laws to “conduct” and “organise” the specified elections.

The concise statement said, “Not only would this interpretation lead to an absurd conclusion, but it has no rational nexus with the intent of the Legislature and the spirit of the Constitution.” “Such an interpretation would offend the federalist structure of parliamentary democracy that was codified in 1973, and further strengthened through the 18th Amendment to the Constitution in 2010.”

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constitutional process of the Parliament but also subvert the functions and privileges of the members of Parliament who are entitled to make a determination as to the proposed amendment in the Election Act, 2017. He submitted that unless the Court is somehow able to interpret Article 226 of the Constitution and respond to the question without engaging with the overtly political grounds for the Reference, to give an advisory opinion in response to the Reference would not be consistent with judicial propriety. The reply said that it does not appear possible for the apex court to offer an opinion on the question without also offering a determination, whether directly or indirectly, on the alleged failure of parliamentary democracy in Pakistan and the political necessity, as urged in the Reference, for the removal of secret ballot voting in the upcoming Senate elections.

It submitted that the Reference appears to have been carefully drafted so as to frame the question solely as a question of law. However, from the express references to, inter alia, the political reform agenda of the federal government; the Charter of Democracy signed by the heads of the major political parties, PPP and PML-N; the Reference is evidently based on considerations that are entirely political in nature. It is difficult to view therefore that the opinion is being sought as to whether or not Senate elections are included in Article 226 of the Constitution, as a matter of legal interpretation only.

It said that the exercise of advisory jurisdiction as demanded by the Reference, the Court would be engaging with questions based on political, social, and moral considerations alone which do not, in actual fact, have anything to do with the Constitution. “On this basis, the Court may respectfully decline to offer an opinion,” said the reply. The AG Sindh submitted that the Reference is of speculative and hypothetical character in as much as it is based on assertions, without proof, historical or current, of horse-trading and the alleged need for electrical reform. It would be difficult for the Court, therefore, to offer an opinion on the Question without also offering an unsubstantiated critique of the current electoral system.

It said that Article 59 of the Constitution not only requires members of the Senate to be elected but it also lays down the electoral principles according to which they are to be elected i.e., proportional representation by means of a single transferable vote.