ISLAMABAD: While issuing a notice to the federation over a plea of the Jamiat Ulema-e-Islam-Fazl (JUI-F) seeking the top court’s directives to cancel the recently promulgated presidential ordinance regarding open voting in the upcoming Senate election, the chief justice observed that no one can stop the government from issuing ordinances.
A five-member larger bench headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi on Monday resumed the hearing of the presidential reference seeking the Supreme Court’s (SC) guidelines on holding the upcoming Senate election through an open ballot and show of hands.
On Saturday, President Dr Arif Alvi signed the ordinance as the government still awaits the Supreme Court’s opinion on whether open balloting could take place without a constitutional amendment.
At the outset of the hearing, former senator and counsel for JUI-F Kamran Murtaza submitted before the bench, “On the one hand, the government is seeking the opinion of the Supreme Court regarding holding an open ballot while on the other, it is also issuing an ordinance in this regard.”
Seeking the court directive for cancellation of the ordinance, Murtaza claimed that the step of the government sabotaged supremacy of the apex court and parliament, adding that never before such an ordinance has been promulgated in this manner.
He said that the court should take into account the circumstances under which the ordinance surfaced and why the amendment proposed by the government has not yet been passed by the parliament before deciding on the matter.
However, Chief Justice Gulzar remarked that no one can stop the government from issuing the ordinance, saying it seems that the presidential ordinance was issued on the basis of assumptions. The chief justice further observed, “If we hold that the presidential reference is under the Constitution, then the ordinance will die down.”
During the course of proceedings, a member of the bench Justice Ijazul Ahsan questioned how the ordinance was a pre-emptive attempt at legislation, adding that if anyone who has an objection with it can approach the high court.
At this, Attorney General for Pakistan (AGP) Khalid Javed Khan submitted that the ordinance was not pre-emptive but also a conditional legislation, adding that the AGP questioned the politicians terming it as an attack on parliament or the top court.
Justice Ahsan observed that according to a news report, the government promulgated the ordinance because the Election Commission of Pakistan (ECP) had scheduled the Senate elections for February 11.
During the proceeding, the events that took place last week in the National Assembly during the introduction of an amendment to the Constitution for an open ballot in the Senate, were also revealed.
Justice Umar Ata Bandial remarked that such scenes were not seen in the National Assembly in the past, to which the AGP expressed chairs were thrown in the parliament abroad saying this is not the case here. There was laughter in the courtroom after Justice Ijazul Ahsan remarked that the seats in the Parliament of Pakistan do not work because these are fixed.
Justice Umar Ata Bandial remarked, “We have also seen good politicians in our country and we should not weigh all politicians in the same scale – the Supreme Court in a decision said that loyalty is based on party ideology.”
He said that the court is trying to ascertain the structure of the constitution in regard to why the secret ballot method has been declared for election of prime minister under Article 226 of the constitution.
The AGP submitted that among those who drafted the Constitution were people like Zulfiqar Ali Bhutto, Wali Khan, Mufti Mehmood and Nawabzada Nasrullah to which addressing the AGP, Justice Bandial observed that people like Nawab Akbar Khan Bughti were also among those who drafted the Constitution.
Justice Bandial further observed that the example of general elections held in 1985 is in front of everyone which resulted in the formation of the government of former prime minister Muhammad Khan Junejo and in this too money was used recklessly.
Later the hearing was adjourned for Tuesday.
