While concluding proceedings on presidential reference seeking the top court opinion to hold upcoming Senate elections on open ballot without a constitutional amendment, the Supreme Court on Thursday reserved its decision in the matter.
A five-member larger bench led by Chief Justice of Pakistan Gulzar Ahmed has adjudicated the case observing the court has nothing to do with political alliance and shall only respond over question that has been asked in the reference. Chief Justice observed the court only has to determine whether Article 226 of the Constitution applies to the Senate elections.
Two months ago as on December 23 last year, Attorney General for Pakistan Khalid Jawed Khan had filed an 11-page reference under Article 186 of the Constitution, invoking advisory jurisdiction of the Supreme Court in the matter. Filing the reference, President Dr.Arif Alvi 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.
On Thursday, appearing before the larger bench, counsel for Pakistan Bar Council (PBC) and the Lahore High Court Bar Association (LHCBA) concluded their arguments in the matter. During the course of proceedings, attorney of the Election Commission of Pakistan (ECP), Sajeel Swati urged the bench to pronounce its opinion by February 28 so that so the process for holding Senate elections could be completed in time
Advocate Mansoor Usman Awan, counsel for the PBC submitted 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.”
A member of the bench, 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 Ijazul Ahsan observed.
Awan contended 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 Ijazul 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,” the judge observed. Responding to the court query, the PBC counsel submitted 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. Awan apprised the bench that the names of appointed candidates are then made public.
When Justice Bandial asked whether counsel for the PBC meant to say all elections were held in accordance with Article 226 of the Constitution the PBC lawyer submitted it would affect all elections if Senate elections were held through open ballot.
Awan contended the Constitution does not mention holding any elections through secret ballot, adding that the term election itself meant secret ballot so it is necessary that every vote be secret.
Throwing light 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.”
Chief Justice Gulzar Ahmed observed the only question in front of the court relating to Article 226 of the Constitution saying 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,”, the Chief Justice observed.
The Chief Justice asked the reason why a constitutional amendment was not being done to end corruption in the election process, adding 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 Chief Justice 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,” the Chief Justice added. He further remarked the Election Commission was a “guard against mal-intent”, questioning what the ECP could do if voters made secret agreements behind closed doors.
“The Constitution was promulgated 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,” the Chief Justice said in remarks. However, counsel for the PBC submitted the bill for electoral reforms had been introduced in the parliament. Upon which the Chief Justice said if the parliament agreed with the bill, then it should pass it or reject it otherwise saying, “It is not the matter of one political party – All political parties want this.”
Representing the LHCBA, Advocate Khurram Chughtai contended that the federal government did not have the authority to seek the court’s opinion to which a member of the bench Justice Ijazul Ahsan remarked the Election Commission was “sleeping and was not willing to wake up”, observing that the Commission did not only have to hold elections but end corruption in the election process. The judge categorically remarked that the court has inquired repeatedly what steps were taken to end corruption but found no response.
However, the AGP submitted that examining the ballot papers would not lead to a violation of secrecy. Another member of the bench Justice Yahya Afridi questioned whether the court’s opinion on the presidential reference would be considered final to which the AGP submitted that the government is bound to abide by the court verdict in the matter.
