SC adjourns hearing on presidential reference on open balloting in Senate elections till Wednesday

ISLAMABAD: The Supreme Court (SC) on Monday adjourned hearing on presidential reference seeking opinion on open balloting for the upcoming Senate elections till Wednesday.

A five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi, heard the reference.

The court had issued notices to all the stakeholders and received replies of the provincial assemblies of Khyber Pakhtunkhwa, Punjab and the National Assembly. Both the provinces had supported to conduct Senate elections through open ballot.

During the course of proceedings, Advocate Kamran Murtaza counsel for Jamiat-Ulema-e-Islam-Fazal (JUI-F) opposed the presidential reference and pleaded the court to declare the reference as non-maintainable.

Raza Rabbani also appeared before the bench and opposed the presidential reference. The court directed Raza Rabbani to submit his reply.

The court also approved the pleas of Advocates Malik Qamar Afzal and Mudassar Hassan to become a party in the case.

Advocate Qamar said he would argue for both open and secret elections.

Chief Justice Gulzar Ahmed directed Qamar to submit written arguments and asked whether he supported or opposed the reference.

Advocate Qamar replied that he supported the reference but in his opinion the apex court could also give its suggestions.

The advocate general Sindh pleaded the court to grant time for submission of reply.

Justice Ijaz asked the advocate general to submit reply in two weeks.

Chief Justice Gulzar Ahmed said the court would review the matter after receiving replies from all the parties.

Justice Ijaz asked whether an ordinary citizen could contest the Senate elections as an independent candidate.

The attorney general responded that there were absolutely no legal restrictions, any citizen could contest elections.

He said the president could approach the SC for opinion on a legal point of the public interest.

Justice Ijaz said the SC also had the power to determine whether a legal point existed in a presidential reference. If it was determined that the presidential reference did not have a legal point and public interest, the reference could be dismissed, he added.

Upon this, the attorney general responded in affirmative and said the SC was required to comment on the presidential reference.

He said opinions of the apex court were also sought on the proposed laws through reference on several occasions in the country's history.

Addressing the attorney general, Justice Ijaz said his argument was that opinions could be sought on future situations and proposed legislation.

The attorney general said a bill on Senate elections was under consideration, so the government had approached the SC for its opinion. The SC had given given its opinion on every reference except Zulfikar Ali Bhutto murder reference, he added.

He said Zulfikar Ali Bhutto reference was still pending.

He said the scheme of the Constitution was very clear and under this scheme various bodies and institutions were formed.

Justice Ijaz said the Constitution provided only machinery and elections were held under the law.

He asked whether the Election Act 2017 was passed unanimously.

The attorney general replied he did not know, but the act was passed.

Justice Ijaz said it was written in the act that the balloting in Senate elections would be secret and it was also written in the Constitution. He asked when it was written in the Constitution, then what was the need to write in the act.

The attorney general said if elections were held under the Constitution, then no law or act was required. The Constitution only provided machinery for some offices/bodies but elections were held under the law/act, he said and added that the constitution also provided special provisions for election law.

He said the complete procedure for the election of the president was provided in the Constitution. No act or law was required for the election of the president, he added.

He said the Election Commission was the body which conducted elections under the Constitution and law. Those elections were held under the law which machinery and procedure were explained in the Constitution, he added.

He said the procedure for elections under the law was not in the Constitution, the Constitution only provided machinery.

Chief Justice Gulzar Ahmed said the court would had to examine the whole constitutional structure.

The attorney general said the Constitution did not specify the procedure for Senate elections.

The hearing was adjourned till Wednesday wherein the attorney general for Pakistan would continue his arguments.

The government had filed a presidential reference with the apex court seeking its guidance regarding amending the Election Act, 2017 through an ordinance to allow the use of open ballots in the upcoming Senate elections.