SC reserves opinion regarding presidential reference on Senate polls

Published February 25, 2021
The Supreme Court on Thursday reserved its opinion on the presidential reference seeking the apex court's opinion on holding Senate elections through open ballot. — Photo courtesy SC website/File
The Supreme Court on Thursday reserved its opinion on the presidential reference seeking the apex court's opinion on holding Senate elections through open ballot. — Photo courtesy SC website/File

The Supreme Court on Thursday reserved its opinion on the presidential reference seeking the apex court's view on holding Senate elections through open ballot.

The Supreme Court said it will send its opinion to President Arif Alvi.

The lawyer for the Election Commission of Pakistan (ECP) requested the court to give its opinion before February 28 so the process for holding Senate elections could be completed in time.

Attorney General Khalid Jawed Khan had on Dec 23 moved the 11-page reference under Article 186 of the Constitution relating to the advisory jurisdiction of the Supreme Court.

The president had sought the answer to the question of whether or not the condition of secret ballot under Article 226 of the Constitution applied to the Senate elections.

A five-member larger bench, headed by Chief Justice of Pakistan Gulzar Ahmed heard the reference. Lawyers representing the Pakistan Bar Council (PBC) and the Lahore High Court Bar Association (LHCBA) presented their arguments during today's hearing.

PBC lawyer Mansoor Usman Awan contended that steps against corrupt practices should be taken before the elections and if the government's argument was accepted, it would render Article 218 (related to the formation of election commission) 'useless'.

"The allegation of corrupt practices has to be separated through evidence [and] cannot be associated with ballot papers."

Justice Umar Ata Bandial observed that the 'real purpose' was ending corrupt practices while Justice Ijazul Ahsan remarked that ballot papers were a form of proof themselves.

"If the connection between the amount [of money] and the ballot paper is established, the election commission should note it," Justice Ahsan added.

Awan argued that elections for the National Assembly were held on an overall basis while elections for the Senate were conducted on the basis of proportional representation upon which Justice Ahsan questioned how elections on specific seats could be held on the basis of proportional representation under Article 51 of the Constitution which is related to elections for National Assembly seats.

"The quota for specific seats is in accordance with the representation of the parties in the National Assembly," he observed.

The PBC lawyer replied that the election commission took lists from political parties for election on specific seats beforehand and the names on the list are then scrutinised according to the principle of proportional representation.

The names of the appointed candidates are then made public, he informed the court.

Justice Bandial asked whether Awan meant to say all elections were held in accordance with Article 226. The PBC lawyer replied that it would affect all elections if Senate elections were held through open ballot.

"The Constitution does not mention holding any elections through secret ballot," he said, arguing that the term election itself meant secret ballot. "It is necessary that every vote be secret," he emphasised.

Elaborating on the concept of proportional representation, the PBC lawyer gave the example of the Balochistan Assembly which he said had a total of 65 members.

"In every election, there are 10 political parties and one independent candidate [out of which] only three political parties hold a majority. What would happen to the other parties? They could unite and change the situation. Any alliance in Balochistan could change the situation."

The chief justice then remarked that the only question in front of the court related to Article 226 of the Constitution (all elections under the Constitution, other than those of the prime minister and the chief minister, shall be by secret ballot), pointing out that the president had not raised the issues of single transferable vote and proportional representation.

"The court has to be restricted to the questions asked in the reference. We will not go out of our boundaries."

He asked the reason why a constitutional amendment was not being done to end corruption in the election process, going on to observe that resolutions were passed by the parliament to make the election process transparent.

"Political parties are accepting [that there are] corrupt practices in the election process. You saw the video, you want to repeat that?" the CJP questioned, referring to a video, shared on Twitter by PTI's official account, that showed some parliamentarians sitting before and counting stacks of cash reportedly ahead of the Senate elections in 2018.

"Everyone is accepting there are corrupt practices [but] no one is taking measures to stop it," he added.

The chief justice said the election commission was a "guard against malintent", questioning what the ECP could do if voters made secret agreements behind closed doors.

"The Consitution was made in 1973, several governments came but no one looked at this problem. PPP and PML-N, despite forming governments, did nothing about this. The parliament did nothing. The PTI government has taken this up, the incumbent government is trying to stop this mistake," CJP Ahmed remarked.

The PBC lawyer noted that the bill for electoral reforms had been introduced in the parliament.

The chief justice said if the parliament agreed with the bill, then it should pass it or reject it otherwise. "It is not the matter of one political party. All political parties want this."

Khurram Chughtai, representing the Lahore High Court Bar Association (LHCBA), argued that the federal government did not have the authority to seek the court's opinion.

Justice Ahsan said the election commission was "sleeping and was not willing to wake up", observing that the election commission did not only have to hold elections but end corruption in the election process.

"[We] asked again and again what steps were taken to end corruption. No answers were given."

The attorney general said that examining the ballot papers would not lead to a violation of secrecy.

Justice Yahya Afridi questioned whether the court's opinion on the presidential reference would be considered final to which the AG replied that the government would be bound by it.

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