Senate polls: Supreme Court to give advice if reference not withdrawn, says CJP

ISLAMABAD: Chief Justice of Pakistan Justice Gulzar Ahmed has said that if the government doesn’t withdraw the Presidential Reference, the apex court will give its advice.

A five-member larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsan, resumed the hearing in the Presidential Reference.

Continuing his arguments, Attorney-General Khalid Javed submitted that the political parties earlier favouring holding of Senate elections through an open ballot were now opposing and creating hurdles to the process.

“It is the obligation of the federal government that to ensure transparency in the elections, it is the desire of the government to hold the Senate elections through an open ballot, however, the market has been set for selling the horses for the elections.”

At the beginning, Raza Rabbani informed the Supreme Court that the government had decided to move a constitutional amendment bill in this regard while the apex court was also hearing this matter.

He pleaded that the court should halt the proceedings in the matter until the constitutional amendment bill was moved in the National Assembly. Justice Ijazul Ahsen, however, observed that legislation was the prerogative of the parliament but not to interpret the law, as it was the job of the apex court.

“Whether a bill is moved or not, the court is empowered to interpret the law”, Justice Ahsen told Raza Rabbani. Raza Rabbani, however, submitted that he just wanted to bring it to the notice of the court.

The AG said that the Charter of Democracy was signed and what was promised not fulfilled regarding holding of election through an open ballot. “This is politics”, CJP remarked but the AG replied that this is not politics but something else.

Justice Ijazul Ahsen observed that to ensure transparency in the elections to the National Assembly, the Election Commission of Pakistan had examined any illegal practice if made then why could not it be done here.

The AG referred to an Indian Supreme Court judgment wherein in it was held that even when a bill was pending on a particular matter, the Supreme Court could look into that matter as well.

He also cited the example of Hasba Bill stating that the provincial assembly had passed the bill but the apex court had restrained the Parliament from doing so. He said that the Senate elections were held under the Election Act 2017.

Justice Ijazul Ahsen asked the AG that as to whether his argument was that under 218(3) the election held for both houses of the parliament and provincial assemblies, it was the obligation of the Election Commission of Pakistan to ensure the elections fairly, and honestly

The AG replied in the affirmative. “But why the ECP was not doing so”, Justice Ahsen asked the AGP. “Because the Election Commission says that elections to the Senate be held under a secret ballot”, AG replied

“Whether the elections for the Senate will be held under the law and not under the Constitution”, Justice Ahsen asked the AG to which he replied in the affirmative.

The AG said that the framers of the Constitution had given extra powers to the ECP and it was bound to hold the elections fairly and honestly. The AG said the name of the voter would be written on the back of the voter’s chit.

Justice Ahsen said that it was the responsibility of the ECP to stop horse-trading The AG said that there was no mention in the Election Act regarding the election of President, Prime Minister etc but only the Senate elections which proved that these were only held under the Election Act but not under the Constitution.

The AG further submitted that there was no penal punishment against a voter who cast his or her vote without the consent of his/her party To a question, the AG said that except Jamaat-i-Islami and Jamiat Ulema Pakistan had moved the court against the Presidential reference.

He said that the PPP and PML-N did not come to the SC against the Presidential Reference seeking opinion of the apex court on holding of Senate elections through an open ballot. Justice Ijazul Ahsen without mentioning any party observed that one party had been affected through horse-trading (selling of votes). Meanwhile, the court adjourned the hearing for Wednesday (today) wherein the AG would continue his arguments.