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ISLAMABAD: The Supreme Court on Wednesday asked if there is no disqualification or punishment in violating ‘party line’ in the Senate election then what is the use of a Presidential Reference.

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 on Wednesday heard the reference regarding holding of the Senate election either through “secret ballot” or “open ballot”.

Justice Ijaz said: “If there is no consequence of violating the party line then what is the use of it [the reference].” According to him, the Election Commission of Pakistan (ECP) can’t say it is a corrupt practice unless there is a law that says not giving vote to the party candidate is an offence. Unless it is proved that a member of parliament (MP) has given vote in return of money, it cannot be held that the member had indulged in corrupt practice.

Attorney General for Pakistan AGP Khalid Jawed Khan responded that an MP is found guilty of corrupt practice if it is proved that he had taken bribe directly or any person on his behalf had taken any gratification for casting vote in favour or remaining absent from the voting process. He said ipso facto it is not disqualification under Article 63 of Constitution.

However, if the gratification is proven then there is disqualification and also the jail sentence in this regard.

The AGP argued that the purpose of the reference is neither to seek disqualification nor prosecution of the MPs under corrupt practice.

The disqualification should come from people who have elected him, as the people are sovereign.

He further said the purpose of reference is also not to malign politicians or to cast aspersions on the political system.

“The purpose is purification of the democratic system and that the people are governed by honest representatives.” Transparency in the system will come through an open ballot,” the AGP added. Justice Bandial remarked: “You (government) want to discredit those who don’t give vote to party.”

The AGP insisted that ‘the small step’ is aimed at purification of the democratic process, adding this the Senate election is a very serious matter.

Justice Ijaz questioned what if some other party comes to power and reverts to secret ballot for the Senate election?

The AGP said no party is against transparency, adding “now Pakistan is a much advanced democratic country.”

Justice Umar Ata Bandial observed that many provisions of the Constitution changed through the 18th Amendment, adding that “but no change was about the conscience of parliamentarians.”

He questioned why no change was made to it?

Justice Ijaz Ahsan questioned: what is the stance of the other side [the opposition] in support of secret ballot?

He noted that an MP cannot be penalised for not giving vote to the party candidate, adding, it is an issue of conscience.

The chief justice said they will see on what basis they [the other side] will oppose the open ballot.

“This is very much in our mind.

“If they oppose this [open ballot] then it means they want the system of buying and selling of votes to continue.”

Justice Ijaz said if a lawmaker does not give a vote to party because of his conscience then why is it done behind the curtain and not openly?

“You [parliamentarians] should be a man of conscience,” the judge said, adding “when you take a stand then do it openly.” The bench noted neither there is a law nor is there anything in the manifestoes of the political parties that the parliamentarians necessarily have to vote for the party candidate. The AGP admitted that there is no legal bar and also no procedural consequence.

He said if an MP wants to vote for a candidate other than his own party’s then he or she should do it openly and face the consequences.”

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2021

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