Senate elections: SC seeks polling scheme

ISLAMABAD: The Supreme Court (SC) on Monday observed that it is the constitutional mandate of the Election Commission of Pakistan (ECP) to ensure conduct of upcoming Senate elections in accordance with law and corrupt practices are guarded against.

The court further observed that having the constitutional mandate enshrined under Article 218(3) of the Constitution, the ECP should take notice of the recent video that got viral showing some lawmakers were taking money.

The court summoned Chief Election Commissioner (CEC) of Pakistan today (Tuesday) along with other staff of the ECP besides directing him to bring complete scheme for discouraging corrupt practices in the upcoming elections of the Upper House of parliament. “Call your Chief Election Commissioner and we will ask what mechanism he has for ensuring the Senate elections in transparent manner,” the Chief Justice asked the counsel. There should be no corrupt practices and it is your duty as well that corrupt practices be guarded against”, the CJP remarked, adding that the Chief Election Commissioner should come and assist the court.

A five-member larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsan resumed hearing in the Presidential Reference.

"General perception is that corrupt practices are rampant in holding of Senate elections and to remove such a perception, the Election Commission has not devised any scheme in this regard,” Chief Justice Gulzar Ahmed noted down in the order. "We direct the Chief Election Commissioner to appear before the court today (Tuesday) along with other staff members and place before us, the scheme for Senate elections,” the CJP noted down in his order.

The chief justice noted down that during the course of hearing, articles 218(3) and 213(3) of the Constitution were emphasised as ECP has the constitutional mandate that election is

conducted fairly, honestly and in accordance with law.

The chief justice observed that the Constitution gives powers to the ECP to formulate a scheme for holding Senate elections. And making such scheme is required by Article 218(3) of the Constitution”, the chief justice added.

It is pertinent to mention here that Article 218(3) says that it shall be the duty of the ECP to organise and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

Earlier, Attorney General Khalid Javed, while continuing his arguments, touched Article 218(3) of the Constitution while referring to the role of ECP.

Justice Ijazul Ahsan observed that an instrument is provided in law, adding that there is a constitutional requirement and mandate provided to ECP to take steps for holding fair elections including the Senate as well.

“If a valid complaint is received, it is the duty of the ECP to take notice of it and make accountable the person, complaint, filed against”, Justice Ahsan remarked. Justice Mushir Alam also observed that the ECP had the constitutional power to take notice of any corrupt practices if made.

Justice Umar Ata Bandial observed that the ECP will have to ensure its constitutional mandate and ensure holding of elections in transparent manner. Now a video tape also got viral recently about the corrupt practice and the ECP should investigate the matter and ensure its constitutional obligation enshrined under Article 218(3) of the constitution”, Justice Umar Ata Bandial observed.

It is pertinent to mention here that a video clip recently got viral, showing certain PTI lawmakers receiving wads of banknotes and stuffing them into bags during the March 2018 Senate election, Prime Minister Imran Khan removed Sultan Mohammad Khan as the Khyber Pakhtunkhwa Minister for Law and Parliamentary Affairs.

Justice Ijazul Ahsan said that no law can curtail the powers of the Election Commission. Chief Justice Gulzar Ahmed, while addressing counsel for the ECP, said that it was his function to hold the elections fairly, justly and honestly and there should be no corrupt practices.

“How will you ensure your transparency in the elections and what you have done so far against the corrupt practices made in the past”, Justice Ahsan asked ECP counsel. “There are lots of examples including Waheed Shah’s case”, the counsel replied.

“Call your Chief Election Commissioner and we will ask what mechanism he has for ensuring the Senate elections in transparent manner”, the Chief Justice asked the counsel. There should be no corrupt practices and it is your duty as well that corrupt practices be guarded against”, the CJP remarked, adding that the Chief Election Commissioner should come and assist the court.

Justice Yahya Afridi observed that during the course of general elections, the ECP examines the votes if there any complaint is filed regarding corrupt practices. Whether you can apply the same rules of general elections on the Senate elections as well please guide us in this regard”, Justice Yahya Afridi asked the counsel for ECP.

Justice Ijazul Ahsan observed that ECP normally adopts the process of counter checking of voting in case any complaint is filed against than why can’t it do in the Senate elections too. The Chief Justice observed that issuing schedule for the elections is not sufficient, the ECP will have to give polling scheme as well.

The ECP counsel said that Chapter 10 of the Election Act completely deals with the matters pertaining to corrupt practices. Justice Ijazul Ahsan asked the counsel as to how many senators have been disqualified for last 40 years for changing buying and selling votes. The counsel replied that a data could be retrieve for finding out as to how many disqualified.

Earlier, Attorney General Khalid Javed told the court that Sindh High Court Bar Association as well as Pakistan Bar Council had also filed CMAs opposing to holding of Senate elections through open ballot.

It is very unfortunate that our bar council and Sindh High Court Bar Associations are siding with the political parties and they have declared the Presidential Reference filed on mala fide intention.

The Chief Justice observed that they had stated in their petitions that the court should give its opinion in accordance with law. Justice Ijazul Ahsan observed that the bar council and bar association had forwarded to judges, the resolutions passed in this regard.

Attorney General, however, expressed grave concerns over the bar associations and political parties, opposing holding of Senate elections through open ballot.

Meanwhile, the court summoned today (Tuesday) Chief Election Commissioner of Pakistan along with other staff of the Commission besides directing him to bring complete scheme for discouraging corrupt practices in the upcoming elections of the Upper House of the Parliament and adjourned the matter. The court also asked former chairman Senate Raza Rabbani to assist the court.