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February 26, 2021

Presidential reference: Why parliament didn’t amend Constitution, asks SC

Top Story

February 26, 2021

ISLAMABAD: A five-member larger bench of the Supreme Court Thursday reserved its opinion on the presidential reference seeking its views about holding the Senate elections through the open ballot and asked as to why parliament had failed to discourage corrupt practices by amending the Constitution.

The court observed that the Election Commission of Pakistan (ECP) was sleeping and it should wake up to fulfil its constitutional obligation. Presiding over the bench, Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed remarked that they had nothing to do with politics and will give their opinion under the advisory jurisdiction of the Constitution and will interpret the Constitution.

The bench — headed by Chief Justice of Pakistan Justice Gulzar Ahmed — comprised Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi.

The judgment was reserved after the counsel for the petitioners had concluded their arguments. “We reserve the opinion,” Justice Gulzar Ahmed announced after Attorney General Khalid Javed had concluded his rebuttal.

Last year on December 23, President Dr Arif Alvi after approving the prime minister’s proposal had filed a reference with the Supreme Court. Filed under Article 186 of the Constitution, the reference sought the apex court’s opinion on amending Section (6) 122 of the Election Act 2017 without amending the Constitution.

The reference claimed that it will promote transparency and accountability in the electoral process, acknowledge respect for the choice and desire of the citizen voters, strengthen political parties and their discipline, which was essential for parliamentary democracy, and discourage floor crossing and use of laundered money for vote buying in elections which grossly insulted the mandate of the people.

The chief justice observed that the Election Commission of Pakistan (ECP) was required to fulfil its constitutional mandate of holding elections, justly, fairly and in a transparent manner and guard against corrupt practices as enshrined in the constitution under Article 218(3).

“In fact, all the political parties accept that such corrupt practices are committed during the Senate elections but they have done nothing so far to curb them,” he said. The chief justice said various resolutions had been passed in the Parliament for discouraging corrupt practices during the Senate elections.

“We don’t know the reasons as to why proper legislations were not yet made in this regard,” the chief justice observed. He recalled that the Pakistan People’s Party and Pakistan Muslim League (PML-N) had an opportunity to make proper legislations in their respective tenures and now the present ruling PTI, but nothing had been done in this regard.

There is something going wrong,” the CJP remarked. Mansoor Awan, counsel for the Pakistan Bar Council, submitted that he will be focusing on main three points — secrecy of vote, election laws and proportional representation.

Referring to Article 51(6) of the Constitution relating to the reserved seats of women, he said the members were elected on the basis of total number of general seats secured by each political party from the province concerned in the National Assembly.

Justice Ijazul Ahsan asked the counsel as to how elections on reserved seats under Article 51 were held with secrecy adding that the reserved seats were awarded to the political parties with proportion of their seats in assemblies.

The PBC counsel replied that the Election Commission got lists of names from political parties, scrutinized names under the proportional representation and made the names of elected members’ public after scrutiny.

Justice Umar Ata Bandial told the counsel that the proportional representation was based on multi-political parties adding that there was a party list for reserved and minority seats. The counsel submitted that the Election Commission was mandated under Article 218(3) of the Constitution to hold the elections in a transparent manner and guard against corrupt practices.

He, however, contended that steps against corrupt practices should be taken before the election, adding that the allegation of corrupt practices had to be separated through evidence [and] could not be associated with ballot papers.

He cited judgments holding that corrupt practices had to be established through circumstantial evidence. Justice Ijazul Ahsen observed that the ballot paper itself was an evidence and hence the Election Commission after finding that money had been exchanged and there was distortion in the election results and election tribunal was moved against could proceed against the corrupt practices.

The chief justice observed that all political forces had agreed that corrupt practices were committed during elections but nobody none of them had taken any concrete steps so far to curb them.

“Political parties have passed resolutions in the Parliament, vowing to curb such practices but not a single legislation has been made so far,” CJP remarked. Meanwhile, Hasan Irfan, counsel for Muddassar Jaura, submitted that the Constitution did not say that the Senate election be held by law but held under the Constitution adding that even in martial law time “Senate election was deemed to be held under the Constitution” under the Conduct of General Election Order 2002.

He submitted that the Constitution had itself declared/spoken, loud and clear that election to the two Houses (Senate and National Assembly) was held under the Constitution.

Looking from another aspect, it is clear that the people of Pakistan through their chosen representatives (the Parliament) have spoken that the Senate election is under the Constitution and not under the law, the counsel contend.

The Chief Justice asked the counsel to read section 122(6) of the Election Act 2017 which the counsel read out. “Nobody has argued before that Section 122(6) is ultra vires to constitution,” the CJP said

Hasan Irfan said that “Constitutional Convention” was recognized in Pakistan and therefore a Convention of Senate election through secret ballot having the force of a Constitutional provision could not be nullified by invoking advisory jurisdiction of the Supreme Court.

He said secret ballot was a vote in which individual voters’ selection could not be traced, adding that secret vote was not un-Islamic. Party line voting is not recognized and it amounts to corrupt practice,” Hasan Irfan submitted.

Qamar Afzal advocate while supporting the presidential reference submitted that the instant reference was maintainable. Farukh Chughtai advocate told the court that the federal government was not authorized to seek the opinion of the court.

The chief justice, however, observed that the president had sent the reference seeking the court’s opinion under the advisory jurisdiction of Article 186 of the Constitution.

He said that the advisory jurisdiction is quite different from that of Indian constitution saying that the Indian constitution relied on facts while here the Constitution looked into legal matters.

Chughtai could not advance his arguments but remained a source of attraction in the courtroom for his unique style of arguing. The court repeatedly asked him to argue on the main issue but he could not. Consequently, the chief justice had to remark: “You are not assisting the court but going somewhere else.”

Thank you”, the chief justice asked Chughtai, who was not ready to conclude his arguments. Sajeel Ahmed, counsel for the Election Commission, referred to Article 225 of the Constitution. When the counsel referred to Article 63(a) of the Constitution relating to disqualification on grounds of defection to other party, the chief justice said, “You are the Election Commission. You have to conduct the election and you have already told us that elections are to be held under the secret ballot.”

What steps you have taken to guard against corrupt practices,” Justice Ijazul Ahsen asked the counsel. “We are asking you to wake up and fulfil your constitutional obligation but you are sleeping,” Justice Ahsen further told the ECP counsel.

When the ECP counsel tried to quote a case or judgment of Chicago, the chief justice said, “We are not going to Chicago. Thank you very much.” Meanwhile Attorney General Khalid Javed in his rebuttal submitted that the scrutiny of the vote could not hurt secrecy. Referring to the arguments of Sindh High Court Bar that the reference was political in nature and should not be answered, he submitted that the presidential reference was not based on a political question but it had sought the interpretation of Article 226.

Attorney General cited the judgment in Ishaq Khan Khaqwani case that held clearly about Article 226 of the Constitution ruling that there may be political repercussions but it is not a political matter but a legal matter.

To a question, he said whatever might be the court decision or opinion on the matter in hand would be completely binding on the government as well as the Election Commission of Pakistan.

“The president has sought the opinion of this court under advisory jurisdiction of Article 186 of the Constitution that calls for interpreting the Constitution.

An attempt was made by the president while seeking the opinion of the court, as there was no solution to this,” the CJP observed adding that the court will give its opinion by interpreting the provisions of the Constitution. “We have nothing to do with politics but are going to interpret the constitution”, the CJP remarked. Later the court reserved its opinion.