ISLAMABAD: Justice Yahya Afridi on Thursday wondered why the government had moved the presidential reference before the Supreme Court to seek its opinion on a matter which already stood answered through a previous verdict.

“Are you setting a rule or a precedence that when there is a dispute between judgements of two different benches you would require a clarification through a reference,” Justice Afridi observed, wondering what was the need of filing the reference when the government already had a judgement which answered the question asked under the reference.

The observation came when Attorney General for Pakistan (AGP) Khalid Jawed Khan recalled before the Supreme Court hearing a presidential reference on open Senate vote that the Balochistan High Court had in 2014 held that the local government elections were always held under the Constitution.

He said the same view was also upheld by the Sindh High Court in 2017; however, a three-judge Supreme Court bench later took a divergent view and determined that such elections were not held under the Constitution, but no detailed reasons were issued. Later in 2018, he added, a two-judge SC bench came out with a decision that such elections were under the Constitution, but that decision was per incurium (characterised by lack of due regard to the law or the facts).

Interestingly, AGP Khan argued, the Election Commission of Pakistan (ECP) was a party in the case before the Supreme Court bench in 2018, but did not apprise it of the earlier three-judge SC bench’s order. “It may be an accidental omission,” he said, adding that he would not attribute any malice towards the commission since it was a constitutional body.

PML-N synopsis asks apex court not to answer reference in light of highly charged political atmosphere

About the query raised by Justice Afridi, the AGP explained that he thought moving the reference before the Supreme Court was the safest recourse since he was too humble to bear the huge burden of advising the cabinet to go for the open ballot in view of the earlier SC judgement, otherwise the people would have taken an adverse opinion about him and would have assailed his photograph.

Meanwhile, the opposition Pakistan Muslim League (PML-N) on Thursday filed a synopsis in the Supreme Court through Barrister Zafarullah Khan, saying the apex court should not answer the reference in light of the highly charged political atmosphere when ethical questions were being raised, debated and alleged in the garb of open ballot.

“The proper forum for such debates is parliament that reflects the general will of the people who are the real sovereign and who employ executive, legislature and judiciary to serve them under the social contract,” the PML-N contended, adding that it appeared as if the government itself was of the opinion that there was a secret ballot for the Senate elections since it had recently tabled a constitution amendment bill in this regard in the National Assembly.

Since the government could not pass it, it wanted to achieve its political design by using the shoulder of the Supreme Court in the middle of a heated controversy among political parties, the synopsis feared.

“It is very clear that this method is politically motivated aimed at achieving goals through the court as they could not achieve it through the constitutional amendment by the proper forum i.e. parliament,” it contended.

“The Supreme Court should not go into this question, which is highly politicised in a very charged atmosphere, when the government is victimising the opposition using all the tools at his hands, including the independent accountability institution like NAB and law enforcement agencies like the FIA...,” the PML-N said.

Published in Dawn, February 12th, 2021