ISLAMABAD: PPP Senator Raza Rabbani has taken the plea before the Supreme Court that the reference seeking the court’s opinion on open ballot for coming Senate elections is misconceived since the president was ill-advised by the executive with mala fide intent to file the reference.

The purpose behind filing of the reference is to bypass the procedure of legislation, provided in Articles 70, 72, 238 and 239 of the Constitution and the Rules of Procedure and Conduct of Business of Parliament, framed under Article 67 of the Constitution, because the ruling party does not have a two-thirds majority in the parliament, particularly the Senate, argues Mr Rabbani in a synopsis he has filed before the Supreme Court.

Headed by Chief Justice of Pakistan Gulzar Ahmed, a five-judge Supreme Court bench is hearing the reference seeking an answer to a question posed by President Dr Arif Alvi whether the condition of secret ballot under Article 226 of the Constitution applies to Senate elections or not.

Mr Rabbani argues that with deliberate intent, the reference does not mention the articles of the constitution which relate to the elections of chairman and deputy chairman of Senate ie Article 60 (2) to (7) and Article 53 which deals with the election of speaker and deputy speaker of National Assembly.

When Article 41 (election of the president) read with the Second Schedule and Article 60 (2) to (7) and Article 53 read with Article 61 are placed in juxtaposition to Article 59 (Senate elections), it emerges that Article 59 is pari materia (same subject matter) to Article 41 read with Second Schedule, Constitution, 1973, to the extent of laying down the procedure, mode and manner of elections to Senate, he says.

Purpose behind filing the reference is to bypass legislation, argues ex-Senate chairman

The former Senate chairman says that the Elections Act, 2017, which deals with the conduct of Senate elections, does not specify any of the ingredients of Article 59 of the Constitution — an article which also deals with the Senate.

The Election Rules, 2017 in Chapter VII on the “Conduct of Elections to the Senate” are also silent on the same, he says. Thus the Elections Act merely compliments different provisions of the constitution dealing with the Election Commission of Pakistan’s authority on delimitation, constituencies, voter lists, elections staff and mode and manner of conduct of the elections.

In terms of the elections to Senate and National Assembly, it provides a procedure to ensure that they are free, fair and transparent, Mr Rabbani says.

He points out that according to the Sindh High Court judgement in the Muttahida Qaumi Movement case on the validity of the Sindh Local Government (Amendment) Act 2015, the substitution of “secret ballot” with the words, “show of hands” pertains to the elections of mayor and deputy mayor. From the plain reading of Article 140-A of the Constitution, it flows that local governments are to be established by the provinces, under laws passed by the provincial assemblies, he says.

Therefore, any elections, to be held under the provisions of such laws will not fall within the ambit of elections under the constitution, Mr Rabbani says, adding that Articles 59, 223, and 224 of the Constitution, when read together, leave no doubt that Senate polls are “elections under the constitution”.

Hence Article 226 of the constitution is applicable and therefore the Supreme Court should answer the reference in the negative by explaining that the elections to the members of Senate are elections under the constitution, Mr Rabbani pleads.

Published in Dawn, January 24th, 2021