ISLAMABAD: The Supreme Court on Thursday reserved its opinion on a question instituted by President Dr Arif Alvi by invoking the court’s advisory jurisdiction whether coming Senate elections could be held through open ballot.

Before the five-judge bench headed by Chief Justice of Pakistan Gulzar Ahmed retired for the day, Advocate Sajeel Shaharyar Swati on behalf of the Election Commission of Pakistan (ECP) asked the court if would be desirable if the opinion came by Feb 28 since the commission had to make arrangements, like distribution of ballot papers among the provinces, for the holding of March 3 Senate elections. The court replied that it would consider the request.

During the hearing, the chief justice regretted that all political parties, including the PPP, PML-N and now PTI, got opportunities to do something about enacting laws to guard against corrupt practices in Senate elections but despite the fact that something wrong was going on, none of them did anything to amend the laws.

The chief justice also wondered why the 26th constitution amendment bill that deals with the open ballot in Senate elections was still pending before the National Assembly and why nothing was being done though the issue was serious and different resolutions were passed in the past, promises were made by different leaders and statements were issued by different political parties.

ECP wants ruling to come by 28th

The chief justice also wondered why the ECP was not doing anything when breach had already occurred and indulgence of members in corrupt practices was in the knowledge of the commission.

Attorney General for Pakistan (AGP) Khalid Jawed Khan requested the apex court to render the advice to the president that Senate elections did not fall within the ambit of Article 226 of the Constitution and that the ECP was liable to print ballot paper in a manner that it was identifiable either by a serial number or a bar code on it as permissible to the commission under Section 122(5) of the Elections Act, 2017.

Justice Yahya Afridi asked the AGP whether the opinion of the Supreme Court was binding and whether any review was available against the opinion of the court even if it had political overtones and whether the opinion in this scenario would be safe.

The AGP replied that anything at the hands of the court would be safe and whatever the apex court decided would be binding on the federal government and the ECP.

Justice Ijaz-ul-Ahsan observed that it was irrelevant whether any question or opinion under Article 186 of the Constitution had political overtones or not and that the Supreme Court had to exercise its authority to answer the question.

The chief justice observed that the president always invoked Article 186 of the Constitution as a last resort when no solution of an issue was found.

The AGP said that when there was doubt, the safest course was to seek opinion of the court and this was what the president had done.

The chief justice also observed that any political overtones had nothing to do with the court since it had to interpret the provisions of the constitution in strict meanings.

The AGP contented that it had been the ideology of the dictators to push back political parties and encourage the individuals.

“The constitution has to be interpreted on the basis of our own experience and not those of Australia or the USA. Our closest experience is similar with that of India where they have changed the entire complexion by declaring the Senate elections though open ballot, the CJP said.

Earlier, Hassan Irfan Khan, a senior lawyer of Supreme who appeared in the court in personal capacity, said that secret ballot was a vote in which individual voters’ selection could not be traced. Secret vote was not un-Islamic and under the law the party line voting was not recognised and amounted to corrupt practices, he argued.

The counsel contended that electoral right meant the right of a person to vote freely at an election and the party line voting violated electoral right and thus was punishable as undue influence under the Pakistan Penal Code.

The lawyer argued that any election was required to be held in a free, fair and transparent manner and the electorate must be given an unqualified, free and unconditional choice to vote for the candidates of their choice without fear or intimidation. Imposition of party lines would mean fiddling with the concept of free or fair elections.

Cross voting/conscience voting was permitted by the constitution and the trust of voter reposed by an MPA was personal to the lawmaker and did not get transferred to party leadership upon election, he contended, adding that an MPA represented his constituency and not party.

Mr Irfan contended that according to the constitution Senate election was not to be held under the law but under the constitution and even during the martial laws, Senate elections were held under the constitution and the Conduct of General Election Order 2002.

It was clear that the people of Pakistan through their chosen representatives — the parliament — had spoken that Senate election was under the constitution and not under the law, he said. Proportional representation of every province was an in-built constitutional protection for smaller provinces against any legislation passed by a political party from a larger province which was against the interests of the smaller provinces, he added.

Published in Dawn, February 26th, 2021

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