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February 24, 2021

Presidential reference: Can vote be seen without violating secrecy, asks SC

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February 24, 2021

ISLAMABAD: Hearing the presidential reference seeking its opinion on holding the upcoming Senate elections through the open ballot, the Supreme Court on Tuesday inquired whether there was any mechanism through which the vote cast could be checked without affecting secrecy. "The law is completely innocent and blind," remarked Chief Justice of Pakistan Justice Gulzar Ahmed while heading the five-member bench.

"Isn't there any system available through which we can find out who voted for whom? If bribes are attached with the votes, how can we not review [the process]," he asked.

The chief justice said every person was against corruption and corrupt practices. "We don't want this entire exercise [Senate elections] to go waste," he said.

Attorney-General for Pakistan Khalid Khan submitted that if the case was not wrapped up by Wednesday (today), then the Election Commission of Pakistan would not be able to hold the elections on schedule.

He requested the apex court not to hear the bar associations and bar councils, as they had no role in the presidential reference seeking its opinion [on holding the upcoming Senate elections through the open ballot].

He said since the matter was purely of political nature, the bar associations as well as bar councils had nothing to do with it and the court should not waste time hearing them.

“They have no role in this matter. If they are interested, then they should file a petition against the lawyers, who had attacked the Islamabad High Court,” the attorney general submitted adding that they should submit to the court their written synopses.

Justice Ijazul Ahsen observed, “These are not adversarial proceedings where everybody comes and claims right of audience.”

The chief justice, however, said the court will hear all the parties and asked the counsel for the petitioners to submit their written synopses to the court.

Meanwhile, Farooq H Naek informed the court that he will be appearing on behalf of the Pakistan People’s Party Parliamentarians (PPPP).

Naek contended that his arguments will be completely different form Raza Rabbani’s adding that he will not consume more time and argue in brief.

The attorney general said they had come on that day by increasing the number of PPs in the PPP.

“The PSF members will also come tomorrow,” the AG contended. The court was informed that Jamiat Ulema-e-Islam Pakistan as well as Jamaat-i-Islami (JI) had adopted the arguments of Mian Raza Rabbani.

Earlier, the chief justice observed that whatever was written in the law had to be followed in good faith. He said the Irish Supreme Court also had a decision on this matter and they would like to know about the stance of attorney general on this point.

The attorney general submitted that the Irish Parliament had two houses. The lower house elections are held by popular vote in Ireland, and the popular vote in Ireland is secret, he added.

Meanwhile, continuing his arguments, Raza Rabbani argued extensively on the matters related to proportional representation, the secrecy of votes, Presidential Elections Rules 1988 with specific arguments on Rule 31 and Rule 32 about instructions of commissioner for holding elections, justly, fairly and honestly.

Rabbani said the Election Act 2017 was also made under the command of the Constitution. He said the number of seats in the US Council of State was not the same for every state rather these were allocated according to the population.

Rabbani said nowhere in Article 59 was it written that the Senate election would held be in accordance with the law. The Senate is never dissolved, the members retire, proportional representation does not mean that the party having strength in the provincial assembly must take that strength too in the Senate, he added.

He said the number of seats under the proportional representation system might reduce, as a situation could arise in shape of a political alliance and the compulsion was reduced.

There is room for single transferable vote in the proportional representation,” Rabbani said to which the CJP observed that they were not denying that but asked if proportional representation included the mechanism of single transferable vote, then what will happen to the majority party.

The CJP said in such a case, the majority party in the upper house could become a minority. Justice Ijaz-ul-Ahsan remarked that the status of rules made for the Election Act was not constitutional. He said all laws were born from the Constitution, while the fact was that no law had been made for the presidential election.

Raza Rabbani argued extensively on Sections 167 and 168 of the Elections Act 2017 saying Chapter 10 of the Act completely talked about the corrupt practices.

He said Section 168 dealt with contract for gratification. Received, agreed and contract these are components under which a process is made while entering into a deal of corrupt practices but prior to voting process.

“And such practice is liable under Section 167 of the Election Act 2017 and even a person could be prosecuted prior to his/her cast of votes,” Raza Rabbani contended He contended that anybody who leveled allegations had to provide material evidence.

The court urged all parties concerned to wrap up their arguments within half an hour each on Wednesday (today) and adjourned the hearing.