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ISLAMABAD: The Supreme Court’s opinion on the presidential reference will only be confined to the question whether the Senate elections are under the Constitution or not, said Chief Justice Gulzar Ahmed.

President Dr Arif Alvi on December 23rd filed a reference in the apex court under Article 186 of Constitution seeking the apex court’s opinion: “Whether the condition of ‘secret ballot’ referred to in Article 226 of the Constitution is applicable only for the elections held 'under' the Constitution such as the election to the office of president of Pakistan, speaker and deputy speaker of National Assembly, chairman and deputy chairman of Senate, speakers and deputy speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017.”

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 Thursday, is hearing the reference on the Senate election.

The bench, after hearing the arguments of all the parties and the rebuttal of the Attorney General for Pakistan (AGP), Khalid Jawed Khan, said “it will render an opinion later on”.

The counsel for Election Commission of Pakistan (ECP), Sajeel Sheryar, requested the bench to give an opinion by February 28th because after that they would start sending ballots to the provinces.

During the course of proceedings, Justice Gulzar said; “We [the SC] will confine ourselves to the question [raised in the reference]”.

“We are simply concerned with the question whether the Senate election, under Article 226, comes under the constitution or not? We will not directly answer about proportional representation and single transferable vote,” the CJP added.

The chief justice said according to Article 218 of Constitution, the Election Commission of Pakistan is empowered to take steps to guard against corrupt practices.

He remarked: “How the ECP will do that we do not know. Suppose two persons are sitting in a room and one agrees to vote in exchange of money. What the ECP will do in enforcing Article 218, we are unaware. Although people’s representatives have been making speeches, promises, and have passed resolutions but no practical step has so far been taken to amend the constitution or the law”.

He added: There had been an opportunity for the Pakistan Peoples Party, then Pakistan Muslim League-Nawaz, and now the Pakistan Tehreek-e-Insaf to amend the Constitution or the law but nothing has been done. There is something wrong. Not one party or anybody took steps to do away with the corrupt practice [in the Senate election].

Justice Afridi again asked the AGP: would it be safe for the apex court to give an opinion on it when the advice of the Supreme Court under Article 186 of Constitution is not binding and the review against it cannot be filed?

The attorney general vowed that “whatever the opinion of the Court, it will be deemed binding. The advice of the Supreme Court is final”.

The AGP acknowledged that the Supreme Court on reference in relationto the recognition of Bangladesh had left it to the parliament to recognise it or not before it returned the reference.

Rejecting the “notion” that the reference is about a political question, the AGP said when both sides have advanced legal and constitutional arguments the reference is no longer political.

Justice Bandial inquired under what law party representation is essential in the Senate.

The AGP replied that in the Benazir Bhutto case, the apex court had held that in parliamentary form of democracy, political parties are the linchpin.

The chief justice remarked that yesterday (Wednesday) the counsel for Sindh High Court Bar Association pleaded that MNAs and MPAs are not the representatives of the party but the constituencies which elect them.

Advocate Mansoor Aslam, appearing on behalf of the Pakistan Bar Council, urged the apex court to return the reference without giving any answer.

He contended that the Constitution could be amended or re-written only and only by parliament.

Hassan Irfan, senior advocate, argued that in the absence of an express provision it could not be said that the intention of the framers of the Constitution was that one arm of the Parliament would hold election under the Constitution (President), while for two other arms (National Assembly and Senate) election would not be held under the Constitution.

“Under the Scheme of the Constitution reference to the National Assembly and the Senate goes together as Parliament, for example, Articles 62 and 63,” he added.

“The term of Senate (Article 59 (3)), the seats and election of the Senators and how they will be elected is provided under Article 59 (1)(a) to (f) and Article 59(2) provides that election to fill seats in the Senate allocated to each province shall be held in accordance with the system of proportional representation by means of the single transferable vote. This is not provided for by the Elections Act, 2017, which only provides various procedural steps to be adopted in the process of election,” he further added.

The court reserved its opinion.

Copyright Business Recorder, 2021