Senate polls: SC wants plea maintainability addressed

ISLAMABAD: The maintainability of the presidential reference seeking an opinion on “open ballot” for the Senate elections came into question on Monday when Justice Yahya Afridi of the Supreme Court wondered why the court should jump into the controversy.

“There is a question of maintainability. Why should the Supreme Court enter into the controversy when it should be kept away instead of dragging it into the political arena,” observed Justice Afridi, a member of the five-judge bench hearing the reference through which President Dr Arif Alvi had sought an answer to a question whether the condition of secret ballot under Article 226 of the Constitution applies to the Senate elections or not.

Quetta lawyer Hadi Shakeel appointed to assist court in the matter

Attorney General (AG) Khalid Jawed Khan, however, recalled that the Supreme Court had already dealt with the maintainability issue at length while deciding the 2005 reference on the Hasba Bill instituted by the then government of Khyber Pakhtunkhwa.

The bench ordered issuing notices to the advocate generals of the four provinces and the Islamabad Capital Territory (ICT) as well as the National Assembly Speaker, the Senate Chairman, speakers of the four provincial assemblies and the Election Commission of Pakistan (ECP).

The court appointed Hadi Shakeel, a lawyer from Quetta, as friend of the court to assist it in the matter.

It ordered publication of notices in newspapers for general information and to solicit opinion of individuals interested in giving their viewpoint.

The court asked the AGP and the four advocate generals to submit their written synopses when hearing resumes on Jan 11.

The reference was filed last month soon after the cabinet decided to hold elections for seats of the upper house which will fall vacant after the retirement of 52 members of the 104-member Senate on March 11.

The cabinet had decided on Dec 15 to hold Senate elections in February as well as to invoke advisory jurisdiction of the Supreme Court on open voting.

At the outset, Justice Ijaz-ul-Ahsan observed that the president was asking the court to distinguish between elections held under the constitution and those held under the electoral law. Except for the elections of the prime minister and the chief ministers, other elections were not held in accordance with the constitution, he added.

Justice Ahsan said parliament was empowered to amend any law if there was a recurring element of horse trading or floor crossing.

The attorney general explained that the government had moved a bill in the National Assembly, but observed that “judges always see things in a straight manner”. Development of consensus was a step subsequent to interpretation of the question which the government had put before the court, Mr Jawed added.

When Justice Ahsan observed that the court would like to see a parliamentary debate on the law that governs the Senate elections, the AGP replied that he had gone through the entire document but could not find any word about debate since the provision was added through the 18th amendment and was a part of Article 226 of the Constitution.

The government’s reference argued that the condition of secret ballot referred to in Article 226 was applicable to elections for the office of the president, speaker and deputy speaker of the National Assembly, chairman and deputy chairman of the Senate, speakers and deputy speakers of the provincial assemblies, but not to elections for senators as the process was governed not by the Constitution but by the Elections Act 2017.

At the fag end of the proceedings, Justice Yahya Afridi again reminded the AGP that he should address the maintainability issue of the reference in his synopsis to be placed before the court.

The reference emphasised that the requirement of secret ballot for Senate elections was not a constitutional provision. Instead, it was only a statutory provision — Section 122 (6) of the ’17 Elections Act. This can be amended by an act of parliament or through an ordinance under Article 89 of the Constitution.

The reference contended that open ballot would help ensure respect for the voter’s choice and desire, strengthen political parties by infusing them with discipline — a prerequisite for parliamentary democracy.

The reference explained that the question of open ballot for Senate elections had arisen because vote buying had damaged the sanctity of the exercise. Every Senate election since 1985 had set off questions about sanctity and genuineness, according to the reference.