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ISLAMABAD: The Supreme Court on Wednesday observed that the federal reference for Senate election through open ballot is based more on morality than legality.

Justice Yahya Afridi noted that the main thrust of the reference is morality for that the federal government has moved the apex court for opinion.

Justice Umar Ata Bandial said the issue is more moral than legal, adding if it is legal then there is Article 63A of Constitution.

Attorney General for Pakistan (AGP) Khalid Jawed Khan contended that the question asked in the reference is constitutional. He said the president has filed the reference for the interpretation of Article 226 of the Constitution.

A five-member 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 regarding holding of Senate election either through “secret ballot” or “open ballot”.

Justice Afridi said, “The question [in reference] may be legal, but the thrust of it is morality and the object seem to be political.”

The AGP responded that the federal government has filed a reference to seek SC’s opinion whether the Senate election is under the constitution or not, adding that after a Supreme Court opinion the matter will go to parliament.

Justice Afridi asked if the federal government has to go to the parliament then why has it come to the Supreme Court?

The AGP replied that in the case of recognizing Bangladesh the matter was referred to the apex court whether or not the Parliament can pass a resolution in that regard.

He said the Supreme Court did not direct the parliament or government to pass the resolution, but it ruled that the Parliament can pass a resolution.

The AGP said in the present matter, the apex court has to give its opinion in “yes” or “no”, adding, “after that the parliament would decide about the mode of Senate election either through secrete or open ballot.”

He said the Supreme Court on a number of political issues - whether issues of dual nationality of the lawmakers or their assets declaration - gave its findings.

There are as many as 11 examples where the apex court did not shirk to give opinion on political matters, he added.

The AGP argued that in direct polls the voters have “free will” to elect anyone whom they like, therefore, the direct election should be held through secret ballot, while in proportional representation, which is an indirect election, the elector has to follow the party line, therefore, it should be through open ballot.

Justice Ijazul Ahsan asked the AGP whether he wanted to say that the members of the national and the provincial assemblies, who elect the senators, are answerable to their constituencies, and the parties on whose ticket they became members of the assemblies.

Justice Bandial said the an MNA or an MPA can give vote to anyone according to his or her conscience, adding, if there is party discipline issue then Article 63A of the Constitution is there.

The AGP responded that allowing an MNA or an MPA to vote according to his or her “free will” is okay.

However, he added, allowing him or her to exercise free right in secret balloting has been misused.

He said in the Senate election, if an MNA or MPA wants to vote for a person according to his or her conscience but in total disregard of his or her party’s decision then first he or she should resign from the membership of the parliament and go to the people of his or constituency, who have elected him or her.

President Dr Arif Alvi on December 23 through AGP had filed a reference under Article 186 of Constitution, seeking the apex court’s opinion.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2021