Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday announced that it would be the prerogative of parliamentarians to decide where the voting in the Senate elections should be through an open or secret ballot method, it emerged.
“We are not the parliament and neither can we reduce its authority,” the CJP said during the hearing on the presidential reference regarding open ballots for the upcoming Senate elections, which was overseen by a five-member larger bench comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi.
The chief justice’s announcement comes one day after Attorney General of Pakistan (AGP) Khalid Jawed Khan told the Supreme Court bench that the Election Commission of Pakistan (ECP) would not be able to hold the elections in time if the case on the open ballot presidential ordinance is not wrapped up by Wednesday.
At the outset of the hearing, advocate Kamran Murtaza, counsel for the Jamiat Ulema-e-Islam (JUI), said that the Attorney General might have misunderstood and he would argue the case before the court.
The chief justice responded that the court would hear his arguments.
“We will only respond to the questions that have been asked in regards to the reference; the court only has to determine whether Article 226 of the Constitution applies to the Senate elections,” Justice Gulzar remarked today.
“Nobody can enforce their decisions. Party decisions should be taken in a democratic manner. The Constitution mentions parties, not their leaders.”
He further observed that “if the Constitution allows for secret voting, the matter will be concluded [forthwith].”
On the occasion, Pakistan People’s Party (PPP) counsel Senator Raza Rabbani said: “A vote is the secret of the voter which he can share with another voter but not the state. The Constitution mandates that no pressure of any kind be brought on the voter. If the vote is made identifiable, then it will no longer be [only] the voter’s secret.”
“Keeping it secret is the voter’s right and making the ballot identifiable amounts to reducing their independence,” he argued.
He further argued that should the elections be held under an open ballot, it would qualify as “temporary law”, which already existed in the form of the presidential ordinance, and that the Constitution states that “Senate elections cannot be held under a temporary law”.
To this, the CJP responded that the court was not hearing the matter of ordinance.
Raza Rabbani said that he was not arguing about an ordinance but a constitutional point. According to the Constitution. The chief justice said that the court had noted his point.
Rabbani maintained if the Supreme Court (SC) stated the Senate elections were not held under the Constitution, then the presidential ordinance would come into force, which was applicable only for 120 days.
Moving his argument to the apex court’s oft-raised concern on proportional representation within the electoral process, the PPP lawyer stated that parties have proportional representation within the National Assembly (NA) while provinces have proportional representation in the Senate.
To this, Justice Ijazul Ahsan observed that Rabbani’s arguments were applicable to elections for NA seats which had a system of “free votes” that ensured the voters’ independence whereas the term “free has not been used for Senate polls so it is not necessary to have secret ballots” in its election.
He added that if the concept of proportional representation was kept in mind, then there was no need to keep the votes secret. He also inquired whether Rabbani would consider it correct if the parliament passed legislation on holding Senate elections through an open ballot.
Advocate Farooq H Naek, counsel for the PPP, said that there was an individual vote for Senate elections and not a party vote. To this, the CJP asked the counsel whether he was saying that there was a free vote in Senate like the NA.
Justice Yahya Afridi asked if the PPP chief had told his members that they were free to cast their votes for whomever they want. Naek replied that this was the job of the party chief.
Chief Justice Gulzar therein said that political parties were more important than party heads in the democracy. He asked the counsel to argue on this point of law. Justice Ijaz remarked that there was a selection in the political parties, instead of elections.
Naek replied that the Senate voter was free to cast his vote against the party policy. If a voter deviated from party policy, he or she would not be disqualified, he maintained.
The CJP remarked that if the party and the voter decided in prior planning about the direction of the vote, then there was no secrecy. He asked how political parties took the decisions.
Naek responded that the decisions were taken in the Central Executive Committee (CEC) meeting.
Justice Bandial asked what would happen if someone violated party discipline, to which Naek responded that there was freedom for the Senate elections and there would be no disqualification under Article 63A.
He maintained that the Senate elections were held under the Constitution, instead of the law. He stressed that the question was whether a vote could be identified after its casting. The vote could never be identified, he stated.
He said that the proportional representation was divided into three parts. Many times, the opposition voted for the government and the people on the government bench voted for the opposition, he added.
He said that the Constitution declared the vote completely secret. Secrecy was essential for constitutional democracy, he stressed. Naek said that the voters were protected to make their own decisions.
The chief justice said that this protection was not applicable in the Senate elections. Farooq Naek replied that the Senate elections were also held through secret balloting. The Senate elections were also kept secret in the Election Act, he added.
He said that the Election Act could only be changed by the Parliament. The court should distance itself from the matter, he advised.
Justice Ijaz asked what would happen if parliament stated that Senate elections would be held through an open ballot. Farooq Naek responded that the SC had the power to annul the unconstitutional legislation.
He said that arguments like bribery, horse-trading were political, and not based on a  constitutional foundation. He said that the apex court decision should be in accordance with the Constitution.
The counsel for the JUI said that the secrecy of the entire election process could not be finished in four or five votes. He argued that a political question had been asked in the reference.
The court should refer the matter to parliament to answer the political question, he stated.
Barrister Zaffar Ullah said that the apex court should interpret the matter for the Senate elections, keeping in view the historical evolution. There were international resolutions to protect the secrecy of the vote, he added.
Addressing the lawyer, the CJP said that the court was not considering the question he was discussing.
The counsel for the Islamabad Bar Association said that the SC should decide whether the question raised in the presidential reference was worth answering or not.
The CJP, to this, said that the court was not considering anyone’s goodwill here. The counsel pleaded with the court to annul the reference as the question raised in the presidential reference was purely political.
Advocate Salahuddin, counsel for Sindh High Court Bar Association, said that his constitutional responsibility was to assist the judiciary. This was a serious political crisis and the court had to decide wisely, he added.
He said that the issue of whether or not to recognize Bangladesh came before the apex court, but the court distanced itself from it. The SC had shown judicial wisdom by not giving any constitutional answer on the issue of Bangladesh, he said and added that the court may also stay away from it in the current case.
He maintained that the current government had not apparently fulfilled its political responsibilities. In 1992, the Indian Supreme Court refused to take up the government’s burden in the Babri Masjid case, he added.
He said that the reference on the Senate election was illegal. All parties except the ruling party were against it, he pointed out.
The CJP said that there were three options before the court. He asked whether Article 226 applied to Senate elections or not.
He asked could there be proportional representation through a single transferable vote, and whether elections held under the Constitution were secret.
Salahuddin said that an amendment to this issue was already pending in Parliament. The chief justice said that the court was not a parliament, nor it could limit its jurisdiction. Salahuddin pointed out that the advice of the court had been sought through a reference.
The hearing of the case was adjourned till Thursday.
Earlier today, Pakistan Muslim League-Nawaz (PML-N) Vice President Maryam Nawaz said that the matter of open balloting in Senate polls is strictly concerned with parliament and the SC should neither become a party to it nor support the government’s “sinking ship”.
“The dual standards of justice are a stain on the top court’s integrity,” Maryam told media persons in Lahore.
“If the Supreme Court provides any relief to the government, then it will be a unilateral decision,” she said, and then added: “We will continue to expose the government over dragging the top court in its vested designs.”
With additional input from APP
