Senate elections: Elections ordinance based on assumptions, says SC

ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed Monday observed that the Elections (Amendment) Ordinance 2021, envisaging the conduct of Senate elections through open and identifiable ballot was based on assumptions and the apex court would have annulled it had it not been conditional.

This observation came as the five-member larger bench of the Supreme Court — headed by Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed — resumed hearing of the presidential reference.

Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsan were the other members of the bench. The chief justice observed that promulgation of the ordinance was subject to its opinion sought by the federal government through the presidential reference under Advisory Jurisdiction as per the Article 186 of the Constitution.

Kamran Murtaza, counsel for Jamiat Ulema-e-Islam Pakistan (JUI-F), informed the apex court through the video link from the Quetta Registry that despite the fact that the presidential reference was pending with the apex court, the government promulgated the Elections (Amendment) Ordinance 2021, envisaging the conduct of Senate elections through open and identifiable ballot.

Kamran submitted that he’d moved an application in this regard praying that the ordinance be declared mala fide and an attempt to undermine the judicial proceedings and parliament besides declaring it ultra vires of the Constitution. Chief Justice Gulzar Ahmed observed that they will hear it by clubbing with the main case and issued notice to the attorney general for Pakistan.

Justice Ijazul Ahsen observed that the ordinance under challenge was not before the court adding that its promulgation was subject to the court opinion. Justice Ahsen asked the counsel to look into the second proviso of the ordinance which stated that in case the Supreme Court gives an opinion in reference No.1 of 2021 filed under Article 186 of the Constitution that elections for the members of the Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March, 2021 and thereafter shall be conducted by the commission through open and identifiable ballot. “It’s totally on condition, subject to the opinion of this court,” he observed.

The chief justice asked Raza Rabbani about his opinion to which he said the instant issue was already before the court adding that by promulgating the ordinance, the government had created a strange situation.

“If the court comes to the conclusion other than the government, then what will be the fate of the said ordinance?” he asked. The chief justice observed that the ordinance will have no impact on the court proceedings adding that they didn’t know how they did it.

Attorney General Khalid Javed submitted that the Election Commission was going to issue the schedule of Senate elections on February 11 adding that the government had promulgated the ordinance conditionally.

“Conditional legislation is issued every day,” the AG contended and referred to the proviso of the ordinance that in case the Supreme Court gives an opinion in reference No.1 of 2021 filed under Article 186 of the Constitution that elections for the members of the Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March, 2021 and thereafter shall be conducted by the commission through open and identifiable ballot.

Justice Ijazul Ahsen observed that the ordinance might be challenged in the High Court. The attorney general contended that they were dealing with a case where people having bags full of money were bent upon polluting the environment of parliament.

He asked how a senator paying Rs20 crore for buying a vote could serve the people. “Why you are opposing the holding of Senate elections through the open ballot?” the CJP asked Raza Rabbani.

The PPP senator replied that the elections should be conducted fairly, justly and in a transparent manner and the person elected should not be corrupt. Rabbani however replied that all political parties did not oppose transparency in the election but the manner in which it was being conducted. He recalled the Senate report of 2016.

“If the political parties want a transparent process, then what happened the other day in the Parliament?” the CJP asked Rabbani. Attorney General Khalid Javed, however, interrupted and said Rabbani had filed a written synopsis in his personal capacity and not representing a political party, but the Sindh government opposed the presidential reference.

Rabbani said the PPP was in government in Sindh adding that the party and government sank together. “I have asked you a very academic question,” the CJP asked Raza Rabbani. However, the attorney general again interrupted and said Advocate General Sindh, who had filed a written synopsis opposing the presidential reference, belonged to the PPP.

“I do not represent PTI but the federation,” he said. The AG submitted that if the court did not give its opinion, then the Senate elections would be held through the secret ballot.

Justice Ijazul Ahsen submitted that the ordinance provided that after the election if the head of a political party furnished a request with the commission for showing the ballot cast by any voting member of his party, the commission shall show the same to him.

Justice Umar Ata Bandial asked the AG if the Constitution does visualize that Parliament should be protected from corrupt practices.

“Yes,” the AG replied while referring to Article 218(3) of the constitution which says, “it should be the duty of the ECP to ensure and organize and conduct the elections fairly, justly and in accordance with law and that corrupt practices are guided against.”

He submitted that the spirit of the Constitution protected the Parliament from people having bags full of money. Justice Umar Ata Bandial observed that the Senate belonged to mature people adding that no quarrel could be witnessed in its proceedings as in the National Assembly.

“But the day I made this observation, the other day the joint session of the Parliament witnessed a riotous situation,” Justice Bandial observed. Such types of incidents do happen around the world, observed the chief justice.

The AG submitted that the Senate elections were not held under the Constitution but under the law. He submitted that the framers of the Constitution did not think that there would be a time when the lawmakers would sell their votes.

“If the parliamentary system is polluted with the culture of votes, then parliamentary democracy will be in danger,” the AG contended saying the government wanted to make the elections process transparent as well as to strengthen the confidence of the people in their representatives.

“It’s a scheme which shuts its door for those who have bags full money,” the AG submitted. Meanwhile, the court adjourned the hearing until Wednesday, February 10.