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ISLAMABAD: The Supreme Court is likely to reserve or announce a short order on the presidential reference on the mode of ballot in Senate elections by Wednesday (today).

Chief Justice Gulzar Ahmed directed Senator Raza Rabbani, who is representing the Pakistan Peoples Party (PPP), and is appearing in his personal capacity as well, to complete his arguments by today.

The Court has allotted Rabbani, Farooq H Naek, the counsel for the Pakistan Peoples Party Parliamentarians (PPPP), the Pakistan Muslim League-Nawaz (PML-N), and the Sindh Bar Association, half an hour each for completing their arguments today (February 24th). They were asked to file their synopses.

Jamiat-e-Ulema Islam-Pakistan and Jamaat-e-Islami have adopted Rabbani’s arguments.

The Attorney General for Pakistan (AGP), Khalid Jawed Khan, vehemently opposed the petitions of bar councils.

He said the bar did nothing, when some lawyers attacked the Islamabad High Court (IHC) chief justice’s chambers.

The AGP requested the chief justice to decide the reference by Friday (February 26th), saying that “the arguments on the reference, afterwards, will merely be academic”.

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, and Justice Yahya Afridi on Tuesday heard the reference regarding holding of the Senate election either through a “secret ballot” or an “open ballot”.

Earlier, during the course of proceedings, while responding to a court’s query, Rabbani said proportional representation is a “system” and it is not for reflecting a party’s strength in the Senate, adding that Article 59(2) of the Constitution provides for the proportional representation.

He further argued that the system requires the representation of a party in the Senate, “but political alliances and compulsions can alternate the mathematical number of the parties in the Senate”. He said it does not necessarily mean an MP is involved in the corrupt practice [of sale of vote], if he has not given vote to a different party.

The chief justice asked the counsel: “You mean to say if the strength of a political party is not reflected in the Senate as there is room to enter into an alliance; and there may be other matters as well.”

Justice Ijaz told Rabbani: that “You are accepting that ordinarily, the party strength needs to be reflected but if there is a distortion then the Election Commission of Pakistan [ECP] cannot look into it”.

Rabbani replied that the ECP can look at the ballots papers but the secrecy of the vote mentioned in Article 226 must not to be violated or disturbed.

The counsel argued that Section 167 of the Election Act, 2017 deals with the ‘corrupt practice’ “that a person is guilty of the offence of corrupt practice, if he is guilty of bribery, personation, and exercising undue influence”.

He said in Section 168 the word “bribery” is defined, -- a person is guilty of bribery, if he, directly or indirectly, by himself or by any other person on his behalf receives or agrees to receive or contracts for any gratification for voting or refraining from voting.

He argued if it comes to the notice of someone that an MP has cast or refrained from polling vote for money then that MP has committed “corrupt practice” and there is punishment for it.

Justice Ijaz said corruption has many variations, adding that there should be some post-election material that connects the corrupt practice to a lawmaker. “If you have taken money for refraining to cast a vote it is also a corrupt practice.”

He questioned: “Is it necessary to have a video of it”?

Rabbani responded: “What had happened to that video which came to the limelight recently. The video is of 2018 elections but no action has been taken.

The chief justice questioned: “Don’t we like to have a system that a legislator involved in a corrupt practice be caught.”

Rabbani said constitution does not allow identification of voters.

Rabbani asked: “Suppose an MPA has refrained from voting then how it would be determined he has been involved in the corrupt practice”?

Rabbani contended that the basic question of the Reference, filed by the federal government is whether the Senate elections are under the Constitution or not.

He said it is not the objective of the Reference that there should be a secret or an open ballot for the Senate election.

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2021