It takes an amendment for show of hands

LAHORE: The PM-proposed change in the procedure of the Senate Election through the `show of hand’ can’t be put to effect without the two-thirds majority’s stamp in the National Assembly.

The Article 239, which deals with Constitution Amendment Bill, lays down the procedure for a constitutional amendment if and when required. Since the proposed change in the procedure of the Senate Election pertains to constitutional provision, that is the Article 226 of the constitution, which says, “All elections under the Constitution, other than those of the Prime Minister and Chief Minister, shall be, by secret ballot”, implying there is no detour to change it except for the mechanism addressed in the Article 239.

Interestingly, all the 6 clauses of the Article 239 leave no legal room for any doubt as to how a constitutional amendment should be laid in the either house of the parliament (Senate or the National Assembly. The clause 1 of the same article clearly narrates the procedure for a Constitutional Amendment Bill, saying ‘A Bill to amend the Constitution may originate in either house and, when the Bill has been passed by votes of no less than two-thirds of the total membership of the house, it shall be transmitted to the other house’.

Similarly, the Clause 5 of the same amendment bars any external intervention in such a legislation, wherein a constitutional provision is concerned. It says, “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.” This all important provision puts a hold on any external intervention in strictly the constitutional provisions of the sacred document. So the PM-proposed amendment in the mechanism of the Senate election hardly holds any water even if the government succeeds to convince the superior court to take up the matter. The Article 239(5) doesn’t even permit any government to knock at any court for relief vis-à-vis any constitutional provision.

And even more interesting is the fact the last clause of the Article 239 – Clause 6 – stresses on the removal of any thinkable doubt over the preceding clauses of the same article. It dilates upon the immense power of the two top August houses, saying that there is no limitation whatsoever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the constitutions. So, the government’s attempt at banking on the election rules is a daydream, for all other rules applied in the country are subservient to the rules prescribed in the constitution. So even if an amendment is called in question, and the court takes it up, it can only interpret the law, implying referring back the matter to the appropriate August houses for the required constitutional amendment.

However, as far as the government’s plan of holding the Senate Elections early is concerned, it can be done under Article 59(5) of the Constitution.