ISLAMABAD: Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed on Wednesday accused the government of approaching the Supreme Court to get endorsement of its political designs and not to seek advice on open ballot for coming Senate elections.

“This is not permissible and this is a kind of reference where the answer of the Supreme Court should be that it respectfully declines to answer,” Mr Ahmed told the five-judge bench hearing the presidential reference on open ballot for Senate elections.

The apex court is likely to conclude the hearing on the presidential reference on Thursday (today) when it may also pronounce its determination on the presidential reference.

Mr Ahmed emphasised that the apex court, while rendering its advice on the question asked, should be careful since any advice under its advisory jurisdiction would lead to executive action of the government.

The apex court should also be careful in determining whether Article 186 of the Constitution was invoked by the government for legitimate purposes and it did not involve any political expediency, he said.

However, Chief Justice of Pakistan (CJP) Gulzar Ahmed clarified that the Supreme Court was not questioning the bonafides behind moving the reference.

The SHCBA leader said all such previous references were moved before the Supreme Court against the backdrop of serious constitutional crisis on which the court intervened and found a way out.

He referred to the reference which was moved before the Supreme Court to seek guidance whether the government of the day should recognise Bangladesh, which earlier was part of Pakistan but disassociated in 1971. Then the government of the day had tried to shift its political responsibility to the Supreme Court by asking a question over a major political controversy but the court adopted the path of judicial wisdom and held that it was up to the government to pass a resolution for accepting or not accepting the new country, Mr Ahmed said.

Likewise, he said, the Indian government had also approached the Supreme Court about the Babri Mosque but the court held that it would not enter into political arena and that dignity and respect of the court should not be compromised.

The counsel argued that the entire premise of the arguments advanced by Attorney General for Pakistan (AGP) Khalid Jawed Khan was “how the law should be” and not “how the law is”. These questions fell within the realm of the parliament since only the parliament was qualified to deal with such matters, he said.

The chief justice observed that Article 226 of the Constitution only talked of all elections which should be held through secret ballot and beyond that it said nothing rather left the question for the parliament to decide what measures should be adopted to maintain secrecy.

Mr Ahmed recalled the 26th constitution amendment bill that deals with open ballot for Senate elections and said it was still pending before the parliament. He emphasised that though allegations were made about exchange of bags full of money and video clips showing buying and selling of votes surfaced but nothing substantial was offered to the court to establish the allegations.

He wondered whether the menace of corruption would end through open ballot for Senate elections.

The chief justice observed that the Supreme Court was not substitute for the parliament and was also conscious of the principle of trichotomy of power.

Pointing towards the AGP, Mr Ahmed argued that they had been told about uncertainty for 17 days and wondered whether the advisory jurisdiction of the court could be invoked on an uncertain situation.

Referring to the arguments that the elections under the constitution only meant that the election’s mode and machinery were described in the constitution, Mr Ahmed argued that Article 53 of the Constitution dealt with the elections to the offices of National Assembly speaker and Senate chairman but the mode and machinery came from the Rules of Procedure and Conduct of Business. “Nowhere in the constitution has it been stated who will conduct the elections or if the proportionate representation is to be exercised through the single transferable vote.”

Mr Ahmed said: “If we repeal the Election Act 2017, could we say that the elections to the Senate could not be conducted? The answer is no since the Election Commission of Pakistan knows its duty how to hold the elections. The elections to the Senate cannot be stopped since the law has been repealed.”

When the framers of the constitution said there should be a secret ballot then it meant secret, he said. “Why take out secrecy from Article 226 of the Constitution and then stuff it in Article 51(6).”

Referring to the free choice, the counsel cited the example of 14th Constitution Amendment which was passed by the elected parliament and in which the party head was given extraordinary powers to maintain party discipline. But the amendment was declared illegal and subsequently taken back by the parliament later, he said.

Some countries had party-based system but Pakistan’s parliamentary system was constituency-based where the member represented his constituency though he might be affiliated with a political party, Mr Ahmed said.

Terming the arguments of the AGP as slippery scope arguments, the counsel contended that in the ideal world lawmakers might have the courage to exercise their conscience and then face the consequence but laws throughout the world were made for the men and not for angels or heroes. He argued that the court should look into the constitution textually.

Earlier Senator Raza Rabbani, the counsel for the PPP, while referring to the recently promulgated ordinance for open ballot for Senate polls wondered whether coming elections to the upper house would be held on the basis of a temporary legislation.

He emphasised that the life of the ordinance was 120 days and by the time it would lapse, the Senate elections would have been conducted. However, the chief justice observed that the question of ordinance was not before the court.

Mr Rabbani said the Supreme Court was seized of the matter under its advisory jurisdiction but before giving any answer it should also kept in mind the principle of trichotomy of powers. He said that extreme caution should be taken since the parliament while dealing with the Senate elections would go according to the interpretation of the apex court whether the elections were under the constitution or not.

Senator Farooq Naek on behalf of the PPPP and Barrister Zafarullah Khan on behalf of the PML-N also argued before the court.

Published in Dawn, February 25th, 2021