Strength of provincial seats must mirror in Senate: SC

ISLAMABAD: The Pakistan People’s Party (PPP) Friday questioned whether the proportional representation of the ruling Pakistan Tehreek-e-Insaf (PTI) would be reflected in the Senate after it asked its coalition partner in Punjab to nominate its candidate for elections.

Former Senate chairman Raza Rabbani commenced his arguments in his personal capacity as well as counsel for the PPP before a five-member larger bench of the Supreme Court, headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsen, as it resumed hearing in the presidential reference.

Rabbani submitted that there was the general impression that a parliamentarian could not be a good lawyer, but he would try his best to assist the court. Chief Justice Gulzar Ahmed observed that Raza Rabbani was a good lawyer and had been a member of the Parliament since 1994 and also remained the Senate chairman.

During the hearing, Justice Ijazul Ahsen observed there was an understanding among the framers of the 1973 Constitution that each political party having a particular strength in a provincial assembly must have that strength too in the Upper House of Parliament. Raza Rabbani replied that as per media reports, the PTI had asked its coalition partner PML-Q in Punjab to nominate its candidate for Senate elections. "Whether the proportional representation of the PTI will be reflected in the Senate with one candidate short," he questioned. "Your argument is quite interesting," Justice Umar Ata Bandial said.

Rabbani submitted that the basic aim of the Senate was to ensure equal representation in the federal system. He referred to the Article 59(2) of the Constitution that says that election to fill seats in the Senate allocated to each province shall be held in accordance with the system of proportional representation by means of a single transferable vote.

“In a political system or parliamentary system, both houses of the Parliament, National Assembly and Senate, work totally with harmony," he submitted.

He, however, said that a conflict could also be seen in both houses as well. Elaborating his point, Rabbani said that sometimes a bill was passed by the National Assembly, but the Senate could reject it and it had to decide it within 90 days. He contended that the National Assembly represents the majority of the population, while the Senate the federating units. He also referred to the British parliamentary system, the House of Lords and the House of Commons.

"There is a speech of Hafeez Pirzada, one of the framers of the Constitution, who deliberated upon the spirit of proportional representation," the chief justice recalled.

Rabbani said that four of Quaid-i-Azam's 14 points related to provincial autonomy and federalism. He said that smaller parties with four seats in a provincial assembly were also given the chance to represent themselves in the Senate with the concept of a single transferable vote. He said that political parties in the provincial assemblies were reflected in the Senate, adding that it was not necessary for the ruling party to govern in a province but an opposition party in the federation can have a government in a province. He contended that there were three different systems under the system of proportional representation.

"A single transferable vote also has the right to mainstream representation," he added. Referring to the presidential reference, he submitted that the president had sought the opinion of the court under the advisory jurisdiction of Article 186 of the Constitution, but the government in the course of its arguments created an impression that the case fell under the jurisdiction of 184/3 of the Constitution.

The chief justice asked Rabbani to first deliberate extensively on proportional representation. Justice Ijazul Ahsen observed that each political party should be represented in the Senate according to its numbers. The judge said that a single transferable vote did not necessarily go against the ruling party and the coalition parties could have their own power and whatever the system was adopted, parties in the provincial assemblies should be represented in the Senate.

Justice Ijazul Ahsen observed that the strength of the provincial seats should be mirrored in the Senate. Justice Umar Ata Bandial asked Rabbani if he could advance his arguments in another way that a majority party could also transfer seats of its coalition party from a province.

"But why the Senate vote is secret in case of an alliance," Justice Bandial asked. Rabbani replied that a political alliance was no secret but if individual voters were needed then votes could be kept secret. He argued that there was a difference between horse-trading and political alliances and that political alliances were usually secret. The court adjourned the hearing till Monday.