ISLAMABAD - Chief Justice of Pakistan Justice Gulzar Ahmad on Thursday said that it is unfortunate that Pakistan Peoples Party (PPP) and Pakistan Muslim League-Nawaz (PML-N) are deviating from Charter of Democracy in which they agreed to end corrupt practice in Senate election.
The CJP gave the remarks while a five-member bench of the apex court headed by him and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, and Justice Yahya Afridi conducted hearing of the reference regarding holding of the Senate election either through “secret ballot” or “open ballot”.
During the hearing, Advocate General Punjab Ahmed Awais adopted that the main intention of the reference is very clear as the government wanted to curb the corrupt practice in the Senate elections. He said that the Parliament is the most prestigious organ of the State.
He said that complete secrecy is required in the general election but in the Senate election which is held through proportional representation by single transferable vote, the open ballot is necessary to guard against the corrupt practice.
He added that the electors of the Senators have double responsibility one the constituency they representing and the party which gave they ticket. Once an MNA or MPA comes in the party discipline then he needs to follow the party-line, he said.
Justice Umar Bandial noticed that in Article 63A the lawmakers intentionally did not consider disqualifying a member, who votes to a candidate other than his own party in Senate election.
Ahmed Awais contended that as the Election Commission of Pakistan (ECP) is silent and doing nothing to prevent the corrupt practice in the Senate election ,therefore, the President has filed the reference to seek Supreme Court opinion. Justice Gulzar stated that Article 59 does not speak about secrecy.
He added that the secrecy is not an absolute principle. Justice Bandial said that the secrecy must not prevail after a member cast his vote. The AG Punjab said that in indirect voting the MPAs have to follow the party-line.
The members are not free but tied to the party discipline. Past experiences have shown that the Senate elections were stolen, he added. He told that Asif Zardari in a statement recently said that they PPP would obtain 10 seats in the Sindh.
AG Sindh Salman Talib ud Din submitted that the mandate of Article 226 is clear that ‘all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.’
He contended the words proportional representation in the Senate are not for the parties strength in the Assemblies, but for the representation of women, technocrats and minority members.
The Sindh government has opposed the reference and in its synopsis urged the Supreme Court to decline to give an opinion on the Question in Reference regarding holding of election either through ‘secret’ or ‘open ballot’.
It stated, “Offering an opinion on the Question will not only hamper the Constitutional process of the Parliament, but also subvert the functions and privileges of the members of Parliament who are entitled to make a determination as to the proposed amendment in Election Act, 2017.”
During the proceeding, the AG Sindh said the question in the reference is more political than legal. He added that a number of times the apex court stated that it should not be involved in the political matters.
At that the Chief Justice said, “We ourselves said that the Constitution is political document. He added, “While interpreting it are we not doing politics?”
The court asked that whether the vote can be seen after it is cast, polling process is over and the candidates result announced? The AG Sindh replied that the vote can be seen after it is polled, but it should not be known who has cast which vote, it should remain identifiable, he added.
The AG argued that even if it is found that ‘A’ has cast this vote, then the question arises how it would be determined that ‘A’ polled vote in exchange of money.
Justice Gulzar asked from the AG that his arguments are based on surmises. He further said, “This has been stated again and again by the Parliamentarian that horse-trading takes place in Senate election.”
The CJP also said that it was admitted on the floor of the House and the resolution passed.
“Pakistan Peoples Party and Pakistan Muslim League-Nawaz have signed Charter of Democracy and agreed on to stop this menace [money in Senate polls],” added the CJP.
Salman Talib said, “If someone accuses me that I polled vote in exchange of money then it has to be establish that I gave by receiving money.”
He added that there has to be prima facie material to connect the wrong doing and mere allegation is not sufficed.
Advocate Generals of all the provinces have concluded their arguments and now the counsels of the Opposition parties will plead their case.
Later, the apex court deferred hearing till Friday (today).