The recent senate elections remain a hot topic in Pakistan. The election of the senators, subsequent to the votes of chairman senate, persists a controversial issue between govt and opposition benches. The dispute followed by rejection of votes has further ignited the matter. The ruling party is celebrating its marvellous victory whereas the People Democratic Moment (PDM) especially the Pakistan Peoples Party (PPP) whose candidate Yousuf Raza Ghilani lost the election, has announced to challenge the decision before apex court of the country.
As this is a novel issue in the history of Pakistan which has never been addressed, it should come at no surprise that the parties have interpreted the constitution according to their preferable views. We’ll try to understand the constitutional issue purely on the legal standpoint.
Article 59 of the constitution of Pakistan defines the general composition of senate whereas the article 60 refers the election of chairman and deputy chairman of senate. Although these two articles are silent on the mode, procedure and manner of voting of the office holders; article 226 delineates that all elections except the Prime Minister and Chief Minister as the case may be, shall be by secrete ballots. Article 219 sub clause (B) imposes an obligation upon Election Commission i.e “organizing and conducting elections to the senate or to fill causal vacancies in a house or a provincial assembly”. The said article is also silent on the procedure and technique. Finally, the article 225 apparently debars the election process to call in question; “no election to a house or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by the act of parliament”.
Now it would be a question of pure constitutional interpretation before the august court which has to answer;
(A) Whether the election process can be challenged before the court when the constitution is silent?
(B) What is the most appropriate forum to challenge the senate election results?
–Whether it is the domain of Election Commission or the Constitutional courts (i.e high courts and Supreme Court).
(D) The most important question before the court would be that whether the parliamentary privilege can be extended to the election process. More precisely, whether the election process is a part of legislative function or is it a general (routine) work?
Before we proceed further, let us define what constitutes as the legislative function of a parliament. The Black Law Dictionary defines legislative function as: "Making or giving laws; pertaining to the function of law-making or to the process of enactment of laws”. Another definition of legislature is “a deliberative body of persons, usually elective, who are empowered to make, change, or repeal the laws of a country or state; the branch of government having the power to make laws, as distinguished from the executive and judicial branches of government”.
According to K.K Ghai, an Indian moderate scholar and writer, “It is the legislature which formulates the will of the state into laws and gives it a legal character”. Legislature or Parliament is that branch of government which performs the function of lawmaking through deliberations. The legislature is that organ of the government which passes the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws.
Now it is clear from the discussion so far that the legislative function includes only the law making process. Any routine matter e.g hiring and firing of an employee, issuing a tender for the construction of parliament’s building or arranging a get together in parliament by the presiding officer of the house of NA or Senate, and etc., would not be considered a legislative function.
As Pakistan is among the common law countries, the precedents from the advanced western nations - wherein these concepts are deeply rooted and elaborated by the scholarly work of the political and constitutional experts - would have a greater significance for this interpretation.
Canada had encountered the similar issue three years ago in case of Chagnon vs Syndicate de la Function publique et parapublique du Quebec 2018 SSC 39, wherein Canadian Senate terminated few of its employees from the job. The employees approached the Court. The Senate took the similar stance that it has a parliamentary privilege, its proceedings/decision was final and could not be called in question before any court. The Supreme Court bench comprising of Wagner CJ, Abella, Moldaver, Karakatsanis, Gascon and Martin JJ overruled the said stance and declared that “the scope of parliamentary privilege is delimited to the purposes it serve and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions”.
The court further introduces a test to gauge the legislative function. “The necessary test demands that the sphere of activity over which the privilege is claimed be more than merely connected to the legislative (law making) assembly’s function”.
The same precedent can be referred in recent Pakistan’s Senate election, wherein gross irregularities were committed by the presiding officer. The proceedings of counting and declaring the chairman senate were not the proceedings of law making. Rather it could be attributed to the non legislative or ordinary functions which can be challenged in any competent court of jurisdiction.
I believe the prime focus of the court will be on the interpretation of the last question, whether the decision of presiding officer amounts the legislative function or it would be considered a routine/ordinary function? In case the court finds that function of the presiding officer inclines to ordinary function, the ruling will be in Ghilani’s favour. If it's otherwise, PPP will attribute the decision to 'another' mischief in judicial history.
As this is a novel issue in the history of Pakistan which has never been addressed, it should come at no surprise that the parties have interpreted the constitution according to their preferable views. We’ll try to understand the constitutional issue purely on the legal standpoint.
Article 59 of the constitution of Pakistan defines the general composition of senate whereas the article 60 refers the election of chairman and deputy chairman of senate. Although these two articles are silent on the mode, procedure and manner of voting of the office holders; article 226 delineates that all elections except the Prime Minister and Chief Minister as the case may be, shall be by secrete ballots. Article 219 sub clause (B) imposes an obligation upon Election Commission i.e “organizing and conducting elections to the senate or to fill causal vacancies in a house or a provincial assembly”. The said article is also silent on the procedure and technique. Finally, the article 225 apparently debars the election process to call in question; “no election to a house or a provincial assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by the act of parliament”.
Now it would be a question of pure constitutional interpretation before the august court which has to answer;
(A) Whether the election process can be challenged before the court when the constitution is silent?
(B) What is the most appropriate forum to challenge the senate election results?
–Whether it is the domain of Election Commission or the Constitutional courts (i.e high courts and Supreme Court).
(D) The most important question before the court would be that whether the parliamentary privilege can be extended to the election process. More precisely, whether the election process is a part of legislative function or is it a general (routine) work?
Before we proceed further, let us define what constitutes as the legislative function of a parliament. The Black Law Dictionary defines legislative function as: "Making or giving laws; pertaining to the function of law-making or to the process of enactment of laws”. Another definition of legislature is “a deliberative body of persons, usually elective, who are empowered to make, change, or repeal the laws of a country or state; the branch of government having the power to make laws, as distinguished from the executive and judicial branches of government”.
According to K.K Ghai, an Indian moderate scholar and writer, “It is the legislature which formulates the will of the state into laws and gives it a legal character”. Legislature or Parliament is that branch of government which performs the function of lawmaking through deliberations. The legislature is that organ of the government which passes the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws.
Now it is clear from the discussion so far that the legislative function includes only the law making process. Any routine matter e.g hiring and firing of an employee, issuing a tender for the construction of parliament’s building or arranging a get together in parliament by the presiding officer of the house of NA or Senate, and etc., would not be considered a legislative function.
As Pakistan is among the common law countries, the precedents from the advanced western nations - wherein these concepts are deeply rooted and elaborated by the scholarly work of the political and constitutional experts - would have a greater significance for this interpretation.
Canada had encountered the similar issue three years ago in case of Chagnon vs Syndicate de la Function publique et parapublique du Quebec 2018 SSC 39, wherein Canadian Senate terminated few of its employees from the job. The employees approached the Court. The Senate took the similar stance that it has a parliamentary privilege, its proceedings/decision was final and could not be called in question before any court. The Supreme Court bench comprising of Wagner CJ, Abella, Moldaver, Karakatsanis, Gascon and Martin JJ overruled the said stance and declared that “the scope of parliamentary privilege is delimited to the purposes it serve and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions”.
The court further introduces a test to gauge the legislative function. “The necessary test demands that the sphere of activity over which the privilege is claimed be more than merely connected to the legislative (law making) assembly’s function”.
The same precedent can be referred in recent Pakistan’s Senate election, wherein gross irregularities were committed by the presiding officer. The proceedings of counting and declaring the chairman senate were not the proceedings of law making. Rather it could be attributed to the non legislative or ordinary functions which can be challenged in any competent court of jurisdiction.
I believe the prime focus of the court will be on the interpretation of the last question, whether the decision of presiding officer amounts the legislative function or it would be considered a routine/ordinary function? In case the court finds that function of the presiding officer inclines to ordinary function, the ruling will be in Ghilani’s favour. If it's otherwise, PPP will attribute the decision to 'another' mischief in judicial history.