Political party more important than leader in democracy: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday said a political party is more important than a party leader in a democracy.

The Chief Justice made these remarks while heading a five-member larger bench that had taken up a presidential reference seeking open balloting in the upcoming Senate elections.

At the outset of hearing, Advocate Kamran Murtaza, counsel for the Jamiat Ulema-e-Islam (JUI), said 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.

Pakistan Peoples Party (PPP) central leader Raza Rabbani, continuing his arguments, said he would try to conclude his arguments in 30 minutes. Upon this, the Chief Justice advised him to start his arguments “directly from the main point”.

He asked the counsel to explain whether Senate elections were held under the Constitution or not. Rabbani said there were examples of voting in the Lower House, whereas the court was hearing a matter related to the Upper House of Parliament.

The secret ballot “is the voter’s own secret” and a voter could share his secret with another voter and not with the state, he added. He said this was the intention of the Constitution, so that there was no pressure on the voters. “If the vote is made identifiable, it would not be just a voter’s secret,” he added.

He said the Constitution protects the freedom of the voter. “Identification of vote is tantamount to depriving a voter from his freedom,” he added. He said the question is whether the ballot is secret or not. The ballot is not secret, but its secrecy commences with the ballot paper coming into hands of the voter, he added.

He said the voter is also bound “not to show vote”. The secret ballot is protected in the Constitution, he added. He said voting also does bind state institutions and officials that they cannot see the vote cast by a voter.

Advocate Farooq H Naek, a counsel for the PPP, said there is an individual vote for Senate elections “and not a party vote”. The Chief Justice asked the counsel whether he was saying there is a “free vote in Senate like National Assembly”. Justice Ijaz Ul Ahsan said there is selection in the political parties, instead of elections. He asked whether a Senate voter is free to vote on his own. Naek replied that a Senate voter is free to cast his vote against the party policy. “If a voter deviates from party policy, he/she would not be disqualified,” he added.

Later, Barrister Zaffar Ullah, the counsel for the Islamabad Bar Association, said the Supreme Court should interpret the matter for the Senate elections, keeping in view historical evolution. There are international resolutions to protect the secrecy of the vote, he added.

Addressing the counsel, the Chief Justice said the court is not considering the question he was discussing. The counsel said the Supreme Court should decide whether the question raised in the presidential reference is worth answering or not. The Chief Justice said the court is not considering anyone’s goodwill here.

The counsel pleaded to the court to annul the reference as the question raised in the presidential reference “is purely political”. Advocate Salahuddin, counsel for Sindh High Court Bar Association, said that his constitutional responsibility is to assist the judiciary. This is a serious political crisis and the court has to decide wisely, he added.

He said that the issue of whether or not to recognise Bangladesh came before the Supreme Court, but the court distanced itself from it. The Supreme Court 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 said 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 “is illegal”. “All parties except the ruling party are against it,” he added.

The Chief Justice said that there were three options before the court. He asked whether Article 226 applied to Senate elections or not. He asked whether there could be proportional representation through a single transferable vote. He also asked whether elections held under the Constitution were secret. He said matters related to the secret ballot, had been left for the Parliament.

Salahuddin said that an amendment to this issue is already pending in Parliament. He said the government also sent a reference and issued an ordinance. The Chief Justice said the court was “not a parliament, nor it could limit its jurisdiction”. Salahuddin said the advice of the court had been sought through reference. Later, hearing of the case was adjourned till Thursda