Senate Ordinance 2021: Legal And Political Concerns

Ordinances generally enjoy considerable support amongst senior statesmen as well as amongst government circles. This is because they are ‘swift and steady’ and need a minimal exercise of legislative muscle, especially when the legislature is as polarised as our National Assembly and Senate. Ordinances also keep the president as a relevant figure in key decision making, as it is the president who files the reference for an ordinance and eventually promulgates it (puts it into formal decree).

However, ordinances are also opposed on the very same grounds. The swift and steady nature of ratifying ordinances is often seen as an inherently undemocratic or borderline authoritarian legal avenue, as it bypasses the elected legislature and vests the symbolic head of state (president) with a lot of power. The current PTI government in particular faces considerable criticism from opposing political parties for being undemocratic, by appointing unelected technocrats in key executive ministerial positions and passing laws through ordinances.

What is imperative to note is that the ordinances continue to shape the discourse around contemporary political concerns. The NAB Ordinance 1999 continues to be a focal concern between advocates for NAB and others who deem it unconstitutional. There is reason to believe that the Senate Ordinance 2021 in relation to open ballots may carry similar political weight from both sides and hence must be analysed in both its constitutionality and widespread political implications.

The first and foremost thing to note is what this ordinance entails. The ordinance decrees the use of open ballots for subsequent Senate elections, beginning immediately with the upcoming Senate election which will take place on or before March 6, 2021. Having open ballots ensures that there will be no secrecy in voting during the elections, which would presumably put an end to ‘horse-trading’. Horse-trading refers to deliberate acts of political bargaining on the lines of 'give and take', especially at the very last moment of elections, and usually involves vested interests and uneasy alliances. Thus, the assumption goes that by eliminating secrecy and confidentiality from the ballots, the room to using backdoor means to influence voting patterns may also be eliminated.

However, this argument is barely a sufficient justification for the ordinance. For starters, this practice will open the doors for inadvertent pressure or threats faced by legislators, in essence, disallowing them to vote in confidentiality and according to their own accord. In other words, the ordinance will work as a means to eliminate all political dissent within a party. A legislator may no longer be able to vote against a candidate who is supported by his or her party, albeit personal reservations or ideological differences with the candidate.

The opposition has been quick to declare the ordinance unconstitutional and to call the government authoritarian. Still, what is interesting to note is that the opposition party PML-N, in the 2006 Charter of Democracy, supported open ballots. Is its opposition to the practice in 2021, then, simply a matter of political opportunism or does it represent an evolution within political thought?

The constitutionality of the ordinance itself depends very much on specific legal opinion, and that too varies considerably. Article 226 of Pakistan’s Constitution decrees the use of open ballots. The conflict arises, however, when the government argues that this injunction does not apply to Senate elections, which should be treated under the Election Act of 2017 instead. Article 186 is used here as justification for Election Act 2017 being allowed to determine the mechanisms of Senate elections. To resolve the conflict of whether Article 226 or Election Act 2017 applies to the Senate elections – or, in other words, to determine the legality of the contents in the Senate ordinance under discussion – a reference has been filed in the Supreme Court. Thus, even before the Supreme Court has decided on its legality, the ordinance has already been promulgated as law by the government. This makes it a case of ‘preemptive legislation’ in which the assumption is that the Supreme Court will approve its constitutionality, even though the court is still examining the matter.

As the constitutionality of the ordinance begs several questions, arising from disagreement in understanding the Constitution and its injunctions, the broader question lingers on. Knowing that a two-thirds majority for an amendment itself would be virtually impossible in either of the Houses, PTI has yet again used the more controversial path of passing ordinances, which puts it head-on against a rampant opposition and the Supreme Court. Of course, the final decision rests with the Supreme Court, which has the ability to declare the ordinance as void, even prior to the March elections. Yet, the promulgation of the ordinance itself raises several important questions about democratic legislation and the role of the Parliament in developing and improving the political culture of Pakistan.