ISLAMABAD - The Supreme Court of Pakistan Wednesday noted that if there is no disqualification in violating party-line in Senate elections then what is the use of Presidential Reference. 

A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi conducted hearing of the Reference regarding holding of Senate elections either through ‘secret ballot’ or ‘open ballot’.

During the hearing, Justice Ijaz said that if there is no consequence of violating the party line then what is the use of it [reference]? The ECP cannot say that it is a corrupt practice unless there is law that say not giving vote to the party candidate is an offence. Unless it is proved that a member of parliamentarian (MP) has given vote in return of money it cannot be held that the member had indulged in corrupt practice.

Attorney General for Pakistan Khalid Jawed Khan responded that an MP is found guilty of corrupt practice if it is proved that he had taken bribe directly or any person on his behalf taken any gratification for voting in favour or remaining absent in the voting process. He said that ipso facto it is not disqualification under Article 63 of Constitution. However, if the gratification is proven then there is disqualification and also the jail sentence.

The AGP contended that the purpose of reference is neither to seek disqualification nor prosecution of the MPs under corrupt practice. The disqualification should come from people who have elected him, as the people are sovereign. He further said that the purpose of reference is also not to malign politician or to cast aspersion on the political system.

He said, “The purpose is purification of the democratic system and that the people are governed by the honest representatives.” “The transparency in the system will come through open ballot,” the AGP added.

Justice Bandial remarked, “You (government) want to discredit those who do not give vote to the party.”

Khalid Jawed argued that the small step is for purification of the democratic process. The Senate election is very serious matter.

Justice Ijaz said that it means the government wanted that safeguards are provided. He questioned that what about if another party comes to power and reverts to secret ballot for Senate election? The attorney general said that no party is against the transparency and now Pakistan is much advanced democratic country.

Justice Umar Ata Bandial observed that in 18th Amendment many provisions of the Constitution changed. He said that but no change was about conscience of parliamentarians. He questioned why no change was made to it?

Justice Ijaz Ahsan questioned that what is the stance of other side [opposition] in support of secret ballot? He noted that an MPA cannot be penalised for not giving vote to the party candidate adding that it is issue of conscience.

The Chief Justice said that they will see on what basis they [other side] will oppose the open ballot. He added, “This is very much in our mind. If they oppose this [open ballot] then it means they want the system of buying and selling of votes to continue.”

Justice Ijaz said that if a lawmaker does not give vote to his party because of his conscience then why it is done behind the curtain and not openly. He maintained, “You [parliamentarian] should be a man of conscience.” When you take stand then do it openly, the judge said.

The bench noted that neither there is a law nor there is anything in the manifesto of political parties that the parliamentarians necessarily have to vote to the party candidate.

The attorney general admitted that there is no legal bar and also no procedural consequence. He said that if an MPA wants to give vote to a candidate other than his own party then he/she should do it openly and face the consequence. Later, the apex court deferred the hearing till today.

APP Adds: Addressing the AGP, the chief justice said he was talking about honesty and loyalty. The members of parliament must be honest and there was no ambiguity in that matter, he added.

Justice Ijaz said Articles 62 and 63 of the Constitution were available for those parliamentarians, who sold their votes.