The recent Senate election remains a controversial topic in Pakistan. The election of the senators subsequent to the votes of the chairman senate persists a contentious issue between Treasury and Opposition benches. The dispute over rejected votes ignited the matter to a worse situation. The ruling party is celebrating its marvellous victory whereas the People Democratic Moment (PDM) especially the Pakistan People Party (PPP) whose candidate Yousuf Raza Gilani has lost the election, has challenged the alleged decision before the Islamabad High Court. Although the honourable High Court under article 69 of the Constitution, has dismissed the writ petition in limine on the grounds of maintainability, however, the PPP intends to appeal the impugned decision.
As this is a novel issue in the history of Pakistan that has neither been addressed before nor any judicial precedent is available hence the Treasury and the Opposition mainly PPP have interpreted the constitution according to their preferable views. We’ll try to understand the constitutional issue purely on the law point.
Article 59 of the constitution of Pakistan defines the general composition of the senate whereas article 60 refers to the election of chairman and deputy chairman of the senate. Although these two articles are silent on the mode, procedure and manner of voting of the officeholders. However, article 226 delineates that all elections except for the Prime Minister and Chief Minister as the case may be shall be by secret ballots.
Article 219 sub-clause (B) imposes an obligation upon Election Commission to "organizing and conducting elections to the senate or to fill casual vacancies in a house or a provincial assembly". The said article is also silent on the mode, procedure and manner regarding the election.
Finally, article 225 apparently debars the election process to call in question before judicial forum by saying that "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". The matter becomes more complex as the Parliament never promulgated such an act to settle the parliamentary elections dispute so far.
Now it would be a question of pure constitutional interpretation before the August court which requires the answers to the following question;
(A)Whether the election process can be challenged before the court when the constitution is silent?
(B) Another question would be that what is the most appropriate forum to challenge the senate election results? Either Election Commission or the Constitutional courts (i. E High Courts and Supreme Court). ?
(C) The most important question before the court would be that, whether the parliamentary privilege can be extended to the election process? Most precisely whether the election process is a part of a legislative function or is general (routine) work?
Before we proceed further let us pay a little attention to point out that what constitutes and includes the legislative function of a parliament. The Black Law Dictionary defines legislative function in the words" Making or giving laws; pertaining to the function of law-making or to the process of enactment of laws".
Another definition 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".
K.K Ghai an Indian moderate scholar defines "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 that 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 that 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 any employee, 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 would not be considered a legislative function rather it would consider an ordinary or routine matter.
As Pakistan is one of the common law countries hence the precedents from the advanced western nations wherein these concepts are deep-rooted and elaborated by the scholarly work of the political and constitutional experts would have a greater significance for this interpretation.
Canada had encountered a similar issue three years ago in the case of Chagnon vs Syndicate de la Fonction publique et parapublique du Québec 2018 SSC 39, wherein the Canadian Senate has terminated a 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 is final; and can’t be called in question before any court. The six (6) members bench of the Supreme Court of Canada 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 serves 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 by more than merely connected to the legislative (law-making) assembly’s function"
The same precedent can be referred to 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 lawmaking. 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 the presiding officer amounts to the legislative function or it would be considered a routine/ ordinary function? If, once the court resolves this mysterious question the answer would be more accurate and oblivious. In case, the court finds that the function of the presiding officer inclines to ordinary function the court will refute the presiding officer’s order in Gilani’s favour. In case otherwise, PPP will attribute this decision to another mischief in judicial history.
