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ISLAMABAD: Chief Justice of Pakistan (CJP) Gulzar Ahmed on Monday said the Supreme Court is not a substitute for the parliament. The chief justice, who is heading a five-member larger bench, also said: “there is a trichotomy of power envisaged in the constitution.”

The bench heard the reference regarding holding of the Senate election either through a “secret ballot” or an “open ballot”.

Justice Gulzar said: “We are dealing with three situations; first, whether Article 226 applies to Senate elections? Whether the Senate elections are to be held under proportional representation by a single transferable vote? Third, when the Constitution said all, then whether it covers the Senate election as well?”

Justice Gulzar said the questions, what is the secrecy and to what extent it be maintained should be left to the parliament to decide.

Salahudin Ahmed, president Sindh High Court Bar Association (SHCBA), stated that one seeks advice when he is uncertain about a course of action, adding that the government has sought a way out in the prevailing political embroilment.

He urged the apex court to return the reference without giving any opinion as the question involved was more political than legal.

He contended that the Supreme Court of Pakistan did not give advice on the government reference that whether or not it was constitutionally valid to recognise Bangladesh as a sovereign country. Similarly, the Indian Supreme Court returned the Presidential reference seeking its opinion on the Babri Mosque issue.

“It will not be the advice [on reference] but the endorsement of the Supreme Court, which is not permissible under Article 186 of Constitution,” Salahudin contended.

He argued that holding of the Senate election through a secret or an open ballot was a policy matter, and the government in that matter was “using the apex court’s shoulder” for a political question.

He said this issue should be debated in the Parliament instead of the Supreme Court.

“It is not [a] justiciable question for the Supreme Court,” he added.

Senator Raza Rabbani argued that the apex court should see that the matter before it was under advisory jurisdiction.

He said: “let the parliament decide whether there should be a secret, open or an identifiable vote for the Senate election. The parliament should decide whether there should be a constitutional amendment or the law be amended.”

He said if the Supreme Court arrived at the conclusion that the Senate elections were not under the constitution then it should keep in mind that the government had already promulgated and Ordinance for an open ballot.

He further said the life of an Ordinance was of 120 days. He asked: “what would happen if the parliament disapproved the Ordinance? Suppose the Ordinance lapses after 120 days then what would be the fate of the Senate election? Would the election of the Upper House also lapse?”

Farooq H Naek, representing the Pakistan People’s Party Parliamentarian (PPPP), argued that the voter of the Senate election was not a representative of the party, but he casts his or her vote as an individual in accordance with his or her conscience.

He stated that if an MNA or MPA does not vote for his/her party’s candidate then he is not disqualified.

“Once he [the MP] is in the polling booth, he is a free man,” he added.

Barrister Zafar Ullah, appearing on behalf of the Pakistan Muslim League-Nawaz (PML-N), argued that Article 226 had to be interpreted in the light of historic political evolution.

The counsel for PPP, PPPP, PML-N, JUI-F, and president SHCBA have concluded their arguments.

The Pakistan Bar Council and other parties’ lawyers will advance their arguments on Thursday (today).

Salahudin also argued that the Attorney General of Pakistan’s (AGP’s) stance that Article 140A is relevant for the instant matter as the Supreme Court had declared that the local government elections were under the Constitution is not correct.

He submitted a three-member Supreme Court order in response to an MQM petition on the Local Government (LG) system that the LG system under the Constitution has no value because no detailed judgment was passed on it.

There is no precedent value of the short order in the light of the apex court’s various judgments, he said, added “that assuming a conflict between Article 51(6) and Article 59(2) because the former stipulates the election of minorities and women members through parties’ list under former while in Article 59(2) the election of senator is through proportional representation by a single transferable vote.

Justice Ijazul Ahsan remarked: “if the word ‘election’ is used in Article 51 for the election of women and minorities’ members then how it is valid because the women and the minorities’ members are elected through parties’ lists, while no election is held for their seats? On the other hand, the Senate election is held in accordance with the system of proportional representation by means of the single transferable vote. The word ‘vote’ is distinguishable in both the Articles.”

Copyright Business Recorder, 2021


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