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ISLAMABAD: The Supreme Court Monday noted that the Ordinance of Senate election is not presumptive, but conditional legislation.

Justice Ijazul Ahsan said the provision of the Ordinance is very clear that if the Supreme Court comes to the conclusion, yes the Senate election is under the Constitution then it will be operative, but if it decides it is not then the Ordinance will not automatically operate.

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz, and Justice Yahya Afridi heard the reference regarding holding of the Senate election either through “secret ballot” or “open ballot”. At the onset of the hearing, Kamran Murtaza counsel for Jamiat Ulema-e-Islam (JUI) argued through video-link from Quetta that the federal government on February 6th issued Ordinance as a preemptive attempt what the court is going to do.

Justice Ijaz questioned how it is preemptive.

He noted that the Ordinance itself says it is subject to the apex court’s order.

Murtaza said for the first time this has happened that the matter is pending before the apex court, while the government has promulgated an ordinance on it.

“Till date, I have not seen such legislation,” adding, the government should have respect for the Supreme Court.

He said that an application has been filed against the ordinance.

The chief justice noted that the ordinance has not been challenged before the apex court yet. “We listen to them [the JUI and Raza Rabbani],” the chief justice said, and asked the office to register the application. The chief justice said they would issue notice on application. He, however, did not pass a formal order. PPP Senator Raza Rabbani stated: “bizarre circumstances have been created as the government issued the Ordinance when the reference is pending before the court.”

He said the first proviso of the Ordinance is conditional, while the second proviso says that the election be held through open ballot.

President Dr Arif Alvi on February 6th enacted Elections (Amendment) Ordinance, 2021 for holding Senate election through open ballot.

Its proviso said: “Provided that in case the Supreme Court of Pakistan gives an opinion in Reference No.1 of 2021 filed under Article 186 of the Constitution, that elections for members of Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March, 2021 and thereafter shall be conducted by the Commission through open and identifiable ballot.”

The court asked Raza Rabbani that they wanted to say that they (the government) entered into the domain of speculation.

“Don’t know why they did it [issued Ordinance],” he said, and added; “No one can stop from issuing the ordinance.”

Raza Rabbani said that the ordinance would give rise to multiple litigations.

Justice Ijaz said the ordinance is subject to the Supreme Court’s decision.

It is not presumptive.

“If we hold that the Senate election is not under Article 226 of the Constitution then it would lose it efficacy.”

Justice Umar Ata Bandial observed that the Upper House of the Parliament is the House of the elders.

They (the senators) control the legislation, they are mature and do not squabble like the members of the Lower House.

He noted that in view of Thursday (February 4) squabble in the Lower House the government recalled the constitutional amendment bill.

The attorney general argued that people with bags full of money were lurking in the capital to spoil the Senate election in broad daylight.

He said if a person spends millions to become a Senator then what would he do for Pakistan.

He will serve his own interest, he added.

He said the Supreme Court had gone out of its way to support fair, just, and honest election.

The chief justice asked Senator Rabbani why they opposed the open ballot.

He said again and again the Court has emphasized that the people are not elected through corrupt practice.

Raza Rabbani said they don’t oppose the idea, adding all the political parties are not opposing the process of transparency and fair election.

He, however, contended that the question before the Court was whether the Senate election be held through open or secret ballot.

The bench noted that the political parties have not opposed the reference.

Raza Rabbani said that the Pakistan Peoples Party is before the Court through the Sindh provincial government.

Justice Bandial questioned why the Article 226 of the Constitution is specific about secret ballot.

He said the exception in it will come later on.

The judge remarked; “We have so many very good politicians, therefore, it is not appropriate to paint all with the same brush.”

The attorney general said there are very good politicians like Zulfiqar Ali Bhutto, Hameed Jatoi, Bugti, and Wali Khan.

Justice Bandial further asked; “When the constitution says Senate election be conducted through secret ballot then why it is objected.”

The chief justice ordered the attorney general to apprise about the original provisions of the Constitution related to the Senate election.

Salahuddin Ahmed advocate contended that the Supreme Court is hearing the matter under advisory jurisdiction.

He argued that the proceeding against the ordinance can be taken under Article 184(3) of the Constitution.

The ordinance says the matter before the apex court is inter-connected.

The chief justice remarked; “We are not bothered.”

After 11th February it would be affected if the court decision is in favour of the reference, he added.

The attorney general said if the opinion is rendered after the 11th then it will be a mere academic exercise.

He said the Ordinance is not an attack on the parliament or judiciary, adding the opposition was criticising without reading Section 122 of the Election Act, 2017.

The case was adjourned until Wednesday.

Copyright Business Recorder, 2021

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