SC wants plea maintainability addressed ; Senate polls

[ghazi52]

SC wants plea maintainability addressed ; Senate polls:

Nasir Iqbal
05 Jan 2021

The maintainability of the presidential reference seeking an opinion on “open ballot” for the Senate elections came into question on Monday when Justice Yahya Afridi of the Supreme Court wondered why the court should jump into the controversy. — Photo courtesy SC website



ISLAMABAD: The maintainability of the presidential reference seeking an opinion on “open ballot” for the Senate elections came into question on Monday when Justice Yahya Afridi of the Supreme Court wondered why the court should jump into the controversy.

“There is a question of maintainability. Why should the Supreme Court enter into the controversy when it should be kept away instead of dragging it into the political arena,” observed Justice Afridi, a member of the five-judge bench hearing the reference through which President Dr Arif Alvi had sought an answer to a question whether the condition of secret ballot under Article 226 of the Constitution applies to the Senate elections or not.

Quetta lawyer Hadi Shakeel appointed to assist court in the matter

Attorney General (AG) Khalid Jawed Khan, however, recalled that the Supreme Court had already dealt with the maintainability issue at length while deciding the 2005 reference on the Hasba Bill instituted by the then government of Khyber Pakhtunkhwa.

The bench ordered issuing notices to the advocate generals of the four provinces and the Islamabad Capital Territory (ICT) as well as the National Assembly Speaker, the Senate Chairman, speakers of the four provincial assemblies and the Election Commission of Pakistan (ECP).

The court appointed Hadi Shakeel, a lawyer from Quetta, as friend of the court to assist it in the matter.

It ordered publication of notices in newspapers for general information and to solicit opinion of individuals interested in giving their viewpoint.

The court asked the AGP and the four advocate generals to submit their written synopses when hearing resumes on Jan 11.

The reference was filed last month soon after the cabinet decided to hold elections for seats of the upper house which will fall vacant after the retirement of 52 members of the 104-member Senate on March 11.

The cabinet had decided on Dec 15 to hold Senate elections in February as well as to invoke advisory jurisdiction of the Supreme Court on open voting.

At the outset, Justice Ijaz-ul-Ahsan observed that the president was asking the court to distinguish between elections held under the constitution and those held under the electoral law. Except for the elections of the prime minister and the chief ministers, other elections were not held in accordance with the constitution, he added.

Justice Ahsan said parliament was empowered to amend any law if there was a recurring element of horse trading or floor crossing.

The attorney general explained that the government had moved a bill in the National Assembly, but observed that “judges always see things in a straight manner”. Development of consensus was a step subsequent to interpretation of the question which the government had put before the court, Mr Jawed added.

When Justice Ahsan observed that the court would like to see a parliamentary debate on the law that governs the Senate elections, the AGP replied that he had gone through the entire document but could not find any word about debate since the provision was added through the 18th amendment and was a part of Article 226 of the Constitution.

The government’s reference argued that the condition of secret ballot referred to in Article 226 was applicable to elections for the office of the president, speaker and deputy speaker of the National Assembly, chairman and deputy chairman of the Senate, speakers and deputy speakers of the provincial assemblies, but not to elections for senators as the process was governed not by the Constitution but by the Elections Act 2017.

At the fag end of the proceedings, Justice Yahya Afridi again reminded the AGP that he should address the maintainability issue of the reference in his synopsis to be placed before the court.

The reference emphasised that the requirement of secret ballot for Senate elections was not a constitutional provision. Instead, it was only a statutory provision — Section 122 (6) of the ’17 Elections Act. This can be amended by an act of parliament or through an ordinance under Article 89 of the Constitution.

The reference contended that open ballot would help ensure respect for the voter’s choice and desire, strengthen political parties by infusing them with discipline — a prerequisite for parliamentary democracy.

The reference explained that the question of open ballot for Senate elections had arisen because vote buying had damaged the sanctity of the exercise. Every Senate election since 1985 had set off questions about sanctity and genuineness, according to the reference.


Published in Dawn, January 5th, 2021

 

[El Sidd]

They get paid for this drama. Let that sink in

 

[ghazi52]

Supreme Court to hear Senate elections’ references today

The Frontier Post
January 10, 2021


ISLAMABAD (APP): The Supreme Court has constituted a five-judge larger bench to commence hearing on a presidential reference seeking the court’s opinion whether ‘open ballot’ for Senate elections would help acknowledge the respect of choice and desire of the citizen voters on Monday (January 11).

The five-member larger bench would be headed by Chief Justice Gulzar Ahmed and comprising of Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi.

Attorney General Khalid Jawed Khan would represent President Dr Arif Alvi.

On December 23, President Arif Alvi, after approving the proposal of the prime minister, had filed a 11-page reference in the Supreme Court under Article 186 of the Constitution relating to the advisory jurisdiction of the Supreme Court and sought its opinion on holding the upcoming elections for the upper house of the Parliament through open ballot and show of hands.

At the previous hearing on January 04, the apex court had issued notices to the advocates general of all four provinces and the Islamabad Capital Territory, the speakers of all provincial assemblies, speaker of the National Assembly, Chairman Senate and the Election Commission of Pakistan directing them to submit written synopses to the court. Any other party interested in being a part of the case could also file petitions in the Supreme Court, the order said.

The court also directed that notices be published in newspapers to seek the public’s opinion on the matter. The apex court also asked senior advocate, Hadi Shakeel, from Quetta to appear and assist the court as amicus curiae.

According to replies submitted by the provinces of Punjab and Khyber Pakhtoonkhwa, both the provinces backed presidential reference, seeking guidance from the Supreme Court on the federal government’s plan to amend the Election Act 2017 through an ordinance to allow the use of open-ballot at the upcoming Senate elections.

“It is the considered view of the Punjab that the reference in question may kindly be answered in the affirmative so that by undertaking necessary remedial statutory action, the Election Act 2017 is amended and enable the elections to the Senate to be held through open ballot,” pleads Advocate General of Punjab Ahmad Awais in a rejoinder.

“This provincial government supports the reference No. 01, 2020, sent by the President to this Honourable Court,” said the KP advocate general in his reply.

 

[ghazi52]

January 11, 2021

President can seek SC opinion under Article 186 of Pakistan's Constitution: AGP


ISLAMABAD: Attorney General of Pakistan (AGP) Khalid Javed Khan argued on Monday that the apex court is bound to give its opinion in a presidential reference.

The statement came during the hearing of the presidential reference filed by the attorney general's office through which President Dr Arif Alvi has sought the Supreme Court's opinion whether Article 226 of the Constitution allows "open ballot" for Senate polls.

A five-member larger bench headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahyah Afridi and Justice Ijazul Ahsan is hearing the reference.

In his arguments, the AGP maintained that the president can seek top court's opinion under Article 186 of the Constitution. Punjab and Khyber Pakhtunkhwa government have backed the federal government's bid to hold Senate elections through a show of hands rather than a secret ballot.

The KP government, in its response to the apex court, said that in the past, the secret balloting method had been used against the spirit of elections. KP government demanded that the court allow the Parliament and the government to amend the Election Act 2017 to hold Senate elections by open ballot.

Punjab government said lawmakers use Senate elections to move against the party policy for their personal benefits. It contented that members who oppose party policy can resign and that it was better to resign than sell their votes.

Meanwhile, Sindh government sought time to file a reply. The apex court granted it a weeks time to submit response. The bench also approved PPP Senator Raza Rabbani's plea to be a party in the case was also approved.

The presidential reference

On January 4, the apex court had issued notices to the federal and provincial advocate generals, the NA speaker and speakers of the provincial assemblies and the Election Commission of Pakistan for a hearing of the presidential reference for holding Senate elections by open ballot.

A five-member larger bench headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahyah Afridi and Justice Ijazul Ahsan heard the reference.

The reference read that the president has sought the apex court's opinion on whether the condition of holding a secret ballot referred to in Article 226 of the Constitution is applicable only for the elections held under the Constitution such as the election to the office of president, speakers and deputy speakers of the Parliament and provincial assemblies and "not to other elections such as the election for the members of Senate" held under the Elections Act 2017 enacted to pursuant to Article 222 read with Entry 41 (1) of the Fourth Schedule to the Constitution "which may be held by way of secret or open ballot" as provided for in the Act.

According to the government, the nature of the elections and the way it is conducted has not been clearly mentioned in the Constitution.

The government said election for the Senate is conducted in accordance with the Election Act of 2017 and asked if it is possible to introduce the idea of open-balloting in the upper house of the Parliament.

 

[ghazi52]

Senate elections: Supreme Court bound to give opinion on presidential reference, says AGP

ISLAMABAD: The federal government Monday told the Supreme Court that its opinion on the presidential reference filed under Article 186 had a binding effect and no embargo could be placed on his authority to seek the court’s advice on the question of law.
Jamiat Ulema-e-Islam-Pakistan (JUI-P), on the other hand, opposed the holding of Senate elections through the open ballot and requested the apex court to declare the presidential reference as non-maintainable and an attempt to undermine the parliament.
A five-member larger bench of the apex court — headed by Chief Justice of Pakistan Gulzar Ahmed — resumed hearing in the presidential reference.
Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsan were the other members of the bench.
On December 23, the federal government had sought the opinion of Supreme Court on holding the Senate elections through open balloting and show of hands.
After approving the proposal of prime minister, President Dr. Arif Alvi had filed the reference with the Supreme Court under Article 186 of the Constitution.
Initiating arguments, Attorney General for Pakistan Khalid Javed said he would start his argument by stating why the reference was admissible.
He said the presidential reference came under Article 226 of the Constitution and the apex-court was bound to give an opinion [on the reference filed by the president] under the law.
The attorney general informed the court that under the Constitution's Article 186, the SC could also give an opinion on the future legislation.
He said under Article 186, the president could seek the Supreme Court's opinion. Earlier, Hassan Irfan Khan advocate also filed a written synopsis with the apex court on behalf of Muddassar Hassan advocate, who had opposed the reference seeking its opinion on the holding of Senate elections.
He submitted that the reference did not reflect bona fide intentions, as it was moved at a time when 26th Amendment to the Constitution was pending with the Parliament.
He contended that the question referred to having the trappings and effect of a political question may graciously be answered strictly in accordance with the express wording of Article 226.
Senator Raza Rabbani also informed the court that he had also filed a CMA for becoming a party to the matter in hand in his personal capacity as senator.
Qamar Afzal advocate submitted that he had also filed his written synopsis adding that he supported the presidential reference and will assist the court on the matter.
Advocate General Sindh Salman Talibuddin through the video link from Karachi Registry submitted that they will also be filing a brief synopsis on behalf of the provincial government and sought one week time.
“Is it going to be a sweat one?” the chief justice asked the AG Sindh on a lighter note. Additional Advocate General Balochistan and Islamabad Capital Territory (ICT) Advocate General informed the court that they had prepared a written synopsis and will file it shortly.
Meanwhile, the court adjourned the hearing until January 13 and asked the attorney general to provide copies of his synopsis with all the parties concerned.

 

[H!TchHiker]

Lol .....

 

[ghazi52]

Justice Ijaz says Parliament makes laws and the SC interprets them

The Frontier Post
January 14, 2021

ISLAMABAD (APP): The Supreme Court on Thursday adjourned hearing on Presidential reference seeking an opinion on open balloting for the upcoming Senate elections till Monday.

A five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi heard the reference.

During the course of proceedings, Attorney General for Pakistan Khalid Jawed Khan said that he wanted to start his arguments with questions from Justice Yahya Afridi.

Answering a question about not sending the issue to the Parliament, the Attorney General said that the federation had approached the Supreme Court for its opinion.

He said that the the government’s case was to interpret Article 226.

Justice Ijaz said that Parliament made laws and the Supreme Court interpreted them.

The Attorney General said that the Supreme Court had ruled 23 years ago that decisions should be made without distinguishing between political and non-political questions. Every country had a Supreme Court or a Constitutional Court to interpret constitutional matters, he added.

He said that Pakistan’s Supreme Court was the constitutional court. In many countries, including Bangladesh, India, Sri Lanka and the United States, the Supreme Court interpreted the Constitution in constitutional and political matters, he added.

He said if political matters prevailed over constitutional matters, then the court avoided these matters. The Supreme Court had also interpreted political issues several times, he added.

He said that the Supreme Court had often referred political matters back to Parliament.

The Chief Justice asked the AGP to inform where procedure for holding Senate elections was written in the law?

The AGP replied that the Election Act 2017 contained the responsibilities of the Election Commission and the procedure for holding elections to the National and Provincial Assemblies.

Justice Ijaz asked where was the procedure for Senate elections mentioned in the Election Act 2017?
The Attorney General said that the complete procedure for Senate elections was mentioned in chapter 7 of the Election Act 2017. Section 26 of the Act dealt with Senate elections.

Justice Yahya Afridi said that the section 26 mentioned secret ballot for the election of senators.
The AGP said that Senate elections were held under the law, not under the constitution.

 

[ghazi52]

Constitutional amendment required for open ballot: ECP to SC

A view of the Senate. — APP/File


The Election Commission of Pakistan has stated that in order to switch from secret balloting to an open ballot method, an amendment to the Constitution will be required.

The above observation has been made in the ECP's written response to the Supreme Court in the presidential reference filed seeking an opinion from the court on the way Senate elections are held.

The ECP said that the Senate elections, much like the elections for the prime minister and the president, fall under the Constitution.

"To bring about an end to secret balloting, a constitutional amendment will be required," said the election commission.

The response on behalf of the ECP secretary was filed to the court by Advocate Shahjeel Shehryar Swati and spans 12 pages.


Sindh opposes changes in method

Meanwhile, the Sindh government has recommended a "show of hands" method and opposed any changes in the way Senate elections are held.

Adviser to Sindh Chief Minister on Law Murtaza Wahab confirmed that the provincial government is against the open ballot method.

He said that the Sindh government's response in the reference will be filed next week.
The provincial government is of the view that the open ballot method is "against the Constitution and the freedom of expression".

Wahab said that the Constitution is "clear" on Senate elections. He said that in the Sindh government's response Articles 226 and 63-A of the Constitution have also been referenced.
He said that Article 226 clearly lays out the process to conduct Senate elections.

The Sindh government spokesperson said the open ballot method is in contrast to the very "soul" of the Constitution.

"We will provide strong justification against this method with references from the Constitution in our response," Wahab said.


Difference between open and secret balloting


In a hearing held by the Supreme Court on Thursday presided over by a five-member headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi Justice Bandial, the court had asked what the difference in procedure between open and secret balloting is.

Attorney-General of Pakistan Khalid Jawed Khan said that the process is the same for the most part.

"The only difference is that in open balloting, the name of the voter is written on the back of the ballot paper. The purpose is to find out which member voted for whom," he explained.
The court has adjourned the hearing till Monday.


The presidential reference


The reference, filed by the government, says that the president has sought the apex court's opinion on whether the condition of holding a secret ballot referred to in Article 226 of the Constitution is applicable only for the elections held under the Constitution such as the election to the office of president, speakers and deputy speakers of the Parliament and provincial assemblies and "not to other elections such as the election for the members of Senate" held under the Elections Act 2017 enacted to pursuant to Article 222 read with Entry 41 (1) of the Fourth Schedule to the Constitution "which may be held by way of secret or open ballot" as provided for in the Act.

According to the government, the nature of the elections and the way it is conducted has not been clearly mentioned in the Constitution.

The government has said that the election for the Senate is conducted in accordance with the Election Act of 2017 and asked if it is possible to introduce the idea of open-balloting in the Upper House of the Parliament.

 

[ghazi52]

SC to hear presidential reference on Senate elections on Feb 2

• Notices to Advocate Generals, the Election Commission of Pakistan, Chairman Senate, Speaker National Assembly and the Speakers of provincial assemblies has been issued in this regard.
• The registrar’s office of the apex court had earlier fixed the case for hearing on January 18.

BR Web Desk
29 Jan 2021


Supreme Court of Pakistan will hear the presidential reference seeking opinion on open balloting for the upcoming Senate elections on February 2.

As per details, five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising of Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi will hear the reference.

Notices to Advocate Generals, the Election Commission of Pakistan, Chairman Senate, Speaker National Assembly and the Speakers of provincial assemblies has been issued in this regard.
The registrar’s office of the apex court had earlier fixed the case for hearing on January 18.
The reference was submitted by Attorney General of Pakistan Khalid Javed Khan after getting approved from President Dr Arif Alvi under Article 186 of the Constitution last week.

 

[ghazi52]

CJP says SC to provide opinion on Senate polls if reference not withdrawn


If the government does not take back the presidential reference on open ballot voting in the Senate elections, the Supreme Court will give its opinion, Chief Justice of Pakistan Justice Gulzar Ahmed said Tuesday.

Headed by CJP Gulzar Ahmed, the apex court's bench heard the case, while on the government's behalf, Attorney General of Pakistan Khalid Jawed Khan argued.

The CJP, during the hearing, said that if the federal government does not withdraw its presidential reference, then the SC would give its opinion.

"The court has to give its opinion on whether the constitution needs to be amended or not to change the secret balloting method," he said.

The chief justice asked "what is so important about open and secret balloting and why are others not agreeing? What are the consequences if the vote is sold?"

Responding to the top judge's question, the attorney general said: "Such an act would come under corrupt practice — and a member of the assembly is disqualified under the law for corrupt practices."

 

[ghazi52]

Senate a mature forum that needs secrecy: CJP

February 04, 2021


On Thursday, the Chief Justice of Pakistan Justice Gulzar Ahmed remarked that the Senate is a "mature and serious forum" that "needs secrecy to perform its functions."

The chief justice was hearing a case related to the presidential reference seeking Senate elections via open ballot, a process which would end secret voting.

The chief justice added that there is a need to "remain cognisant of corrupt practices entering the Upper House."

During the hearing, Attorney General of Pakistan Khalid Jawed Khan said that "whoever comes on a provincial assembly party ticket should vote according to party policy as the political party is accountable to the people."

In a reply, the chief justice said that "democracy is not visible even in political parties."

 

[ghazi52]

Govt decides to promulgate ordinance on Senate open vote


Draft prepared by AGP sent to PM, to be circulated among cabinet members


Hasnaat Malik
February 06, 2021

ISLAMABAD: In a surprise move, the government has decided to promulgate an ordinance to amend the Election Act 2017 to hold the upcoming Senate elections through open ballot.

However, the enforcement of the ordinance will be subject to the outcome of a presidential reference wherein the federal government has sought opinion from the Supreme Court whether the Senate elections could be held through open ballot without any constitutional amendment.

The government has also sought the Supreme Court’s opinion on whether the Senate elections could be held through open ballot by amending the Election Act 2017 that requires simple legislation.

The presidential reference is being heard in the Supreme Court pending a decision. A five-judge larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed has been hearing the case.
Attorney General for Pakistan Khalid Jawed Khan is still arguing the matter and counter arguments are still awaited.

Sources in the AGP office told The Express Tribune that Khan has prepared the draft of the ordinance and sent to Prime Minister Imran Khan.

It would be then be circulated among the cabinet members for approval.

A senior government official informed The Express Tribune that the ordinance is being promulgated after the Election Commission of Pakistan (ECP) announcement the Senate elections schedule for February 11.

There is slim chance that that the presidential reference would be decided before the Senate elections schedule. Keeping in view the prevailing situation, the sources said, the AGP had advised the prime minister to promulgate the ordinance the enforcement of which would be subject to the outcome of the presidential reference.

If the presidential reference’s decision comes in favour of the government after issuance of the Senate elections schedule, then the changed method of open ballot could not be introduced in the upcoming elections.

Senior lawyers are appreciating AGP Khan for timely advising the government to promulgate the ordinance. Interestingly, the law ministry is being kept away in the matter.

According to the proposed amendment, the government will amend the Election Act 2017 wherein it is stated that the Senate elections will be held on the basis of secret ballot.

New insertions will be made in the act that the ballot will be opened wherein voter will disclose his identity. Likewise, it is also added in proviso that head of a party may move an application to the ECP for examination of his party MPAs ballots.

Earlier, for achieving the same objective, the government tabled a bill for the 26th Constitution Amendment. The bill proposed amendment to Article 226 to introduce open ballot for Senate elections.

A member of the cabinet says that the purpose of open ballot to ensure transparency in the Senate elections. The government is using every option for the purpose.

Earlier, the ECP in its reply submitted in the Supreme Court opposed the government’s plan to hold the Senate elections through open ballot by amending the Election Act 2017.

All opposition parties, including the Sindh High Court Bar Association, also opposed the government plan on the Senate elections.

Lawyers, who witness the proceedings of the presidential reference case, believe that opinion seems to be divided among members of the bench; hence, one cannot say about the outcome of the case.

However, they were of the opinion that that AGP Khalid Jawed Khan has been professionally arguing the case on merit.

 

[ghazi52]

No one can stop govt from promulgating ordinances, says CJP

judge says seems govt passed Senate polls ordinance on speculations; seeks AGP's response

Hasnaat Malik
February 08, 2021


ISLAMABAD: Justice of Pakistan Gulzar Ahmed dampened the opposition's hopes on Monday after he observed that no one can stop the government from promulgating the ordinance regarding open balloting in the Senate elections.

This was observed by the Supreme Court while hearing the Jamiat Ulema-e-Islam's petition filed against the Election Amendment Ordinance that seeks to conduct the forthcoming Senate elections through open voting.

On Saturday, President Dr Arif Alvi signed off the ordinance as the government still awaited the SC's opinion on whether open balloting could take place without a constitutional amendment.

However, the CJP observed that, "I think they [government] entered the domain of speculations. I don't know how they did it. No one can stop them."

Justice Gulzar further added that, "If we hold that the Senate elections is under the Constitution, then the ordinance will die down."

Commenting during the hearing, Justice Ijaz-ul-Ahsan questioned how the ordinance was a preemptive attempt at legislation, adding that if anyone who has an objection with it can approach the high court.

At this, Attorney General of Pakistan (AGP) Khalid Javed Khan said that the ordinance was not preemptive but also a conditional legislation. He questioned the politicians terming it as an attack on parliament or the top court.

Justice Ahsan observed that according to a news report, the government promulgated the ordinance because the Election Commission of Pakistan (ECP) had scheduled the Senate elections for February 11.

At the onset of the hearing, JUI-F's counsel Kamran Murtaza argued that the government did not respect the court proceedings and promulgated an ordinance over a matter that was sub judice.

He requested the court to look into the matter. The counsel also stated that never before have legislation been passed in this manner before.

The bench, however, issued notice to the AGP over the JUI-F's petition.

 

[ghazi52]

SC summons CEC, ECP members in Senate polls case


The Frontier Post /
February 15, 2021


ISLAMABAD (APP): The Supreme Court on Monday summoned the Chief Election Commissioner (CEC) and members of the Election Commission of Pakistan (ECP) along with a proposed scheme to curb corrupt practices in the Senate elections on Tuesday.

A five-judge SC larger bench comprising Chief Justice of Pakistan Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi heard the presidential reference seeking an opinion on open balloting for the upcoming Senate elections.


During the course of proceedings, Attorney General for Pakistan Khalid Jawed Khan said the Pakistan Bar Council (PBC) and the Sindh High Court Bar Association (SHCBA) had become parties in the case and expressed disappointment over them for opposing the reference without giving any dissenting opinion.


The CJP said the bar associations had asked the court to announce a decision according to the Constitution. The AGP said it was worrying that the political parties and the bar councils were opposing the open ballot. .

The chief justice remarked that the bar councils should be independent, not partisan.

The attorney general said the bar councils had played a role for upholding the Constitution and the rule of law in the past, and they should review their position. Both the PBC and the SHCBA had made an alliance with the political parties, he alleged.

The CJP said the bar councils wanted that no action should be taken against the Constitution.

Justice Ijaz said the bar councils also sent their resolutions to judges, which was not a professional behaviour. It was necessary to determine the limits from the where the work of bar councils ended and that of the court began, he added.

The attorney general said the bar councils were opposing open balloting for Senate polls while the survival of democracy was in transparent elections.

Justice Bandial said the Election Commission was a federal institution whereas the local governments were a provincial subject. The provincial assemblies bound the federal body through legislation, he added.

He said Parliament did not amend the law for holding Senate elections through open ballot.

The AGP said sometimes a judicial interpretation was required. The court interpreted the law and the Parliament amended it accordingly. Previously the Election Commission had been given powers as per court orders, he added.

Justice Ijaz said it was the responsibility of the Election Commission to ensure transparent elections. If the Constitution stated to ensure transparency then the Election Commission was fully independent, he added.

Even in open ballot there would secret voting, he said, adding the ECP could do anything to eradicate corruption in the electoral process.

The chief justice said the Senate elections should be secret but complaints should be investigated.
Justice Ijaz said preventing the corrupt practices was the responsibility of Election Commission.
The court directed the the CEC to submit the election scheme in the court with reference to the Senate elections.

Later, the court summoned the CEC and ECP members and adjourned the case till Tuesday.

 

[ghazi52]

SC slams election commissioner, directs ECP to ensure transparent Senate polls are held




ISLAMABAD: The Supreme Court of Pakistan on Tuesday slammed the chief election commissioner, directing the ECP to ensure the Senate polls are held in a transparent manner.

A five-member bench of the Supreme Court headed by Justice Gulzar Ahmed conducted the hearing of the presidential ordinance on holding the Senate elections through the open ballot.

Among those present in the apex court for the hearing were the chief election commissioner, the attorney general, the election commissioner's lawyer and PPP's Raza Rabbani.

"The election commissioner should tell us how he plans to stop corrupt practices in the Senate elections," asked the chief justice during the hearing.

Justice Ijaz ul Ahsan observed that the Election Act does not mention corrupt practices specifically. "The word 'guard' has been used for political interference before and after elections, as well as corrupt practices," noted the judge.

Justice Ahsan said that guarding against corrupt practices in this context would mean that precautionary measures ought to be taken before the elections so that they are held in a transparent manner.

"Money and political interference are used in elections," noted Justice Ahsan. "The election commission should tell us how it plans on stopping such practices."

The chief election commissioner responded by saying that the ECP does all it can under its jurisdiction to ensure that corrupt practices are thwarted. "Action is taken before and after elections, on grievances and complaints," said the election commissioner.

"Chief election commissioner sahab, you aren't understanding the depth of the problem," Justice Gulzar responded. "The ECP is not an ordinary government department, it has a mandate," urged the chief justice.

The chief election commissioner's counsel present inside the courtroom tried to speak but the bench cut him off. "We have summoned the chief election commissioner. Please keep quiet," the bench told the lawyer.

Explaining the measures taken by the ECP to curb corrupt practices, the chief election commissioner said that the commission had introduced a law for candidates directing them to open a bank account with a limit of Rs1.5mn for election-related expenses.

He explained that Senate elections are held via secret balloting as per Article 226.

"What is a secret ballot?" Justice Ahsan asked the election commissioner.

"A secret ballot is one which cannot be identified," he responded.

"From where have you assumed this definition of a secret ballot," asked Justice Ahsan.

The chief election commissioner responded by saying that there is a procedure highlighted in the Election Act. He said the election commission was aware of its responsibilities.

"The ECP cannot take action action against candidates for voting outside party lines," explained the chief election commissioner.

"Maybe you haven't tried to understand our order from the previous day," the chief justice responded.

"You don't seem to understand how elections take place in Pakistan. Making a code of conduct won't solve the issue," he added.

The chief election commissioner responded to the criticism saying that the ECP's monitoring and finance wing has been strengthened. The bench, however, did not seem pleased at the response.

"These are the job responsibilities of officers," said the chief justice. "What are you doing?"

"Chief election commissioner sahab, you are not informing us with a scheme to stop corrupt practices."

The election commissioner repeated that the votes that are polled in the National Assembly cannot be identified.

"Where is it written in the Constitution that after a vote is cast, it cannot be identified," asked Justice Ahsan.

"There is no provision in the Constitution for ballot papers that cannot be identified," the chief election commissioner responded.

Justice Yahya Afridi then asked the chief election commissioner whether the steps taken by the ECP are enough and whether they will stop corrupt practices from taking place.

Senate 'horse-trading' video

The chief election commissioner said that the ECP has taken notice of the Senate 'horse-trading video' from 2018 and had called a meeting to discuss it.

"The election commission got to know about a video from 2018 today?" asked Justice Ahsan.

"Did the ECP disqualify any senator? Were there not complaints relating to the buying and selling of votes after the last Senate elections?"

The election commission chief responded by saying that the electoral body took notice of corrupt practices in the Kurram by-election and had also taken notice over the presence of parliamentarians in an election rally that took place yesterday.

"You don't have to sit in your office and work from there only," the chief justice retorted.

The election commissioner responded by saying that the ECP will seek candidates' data from NAB and the FIA. "We will also seek candidates' documents from NADRA, State Bank of Pakistan and the FBR."

Coming back to the video, the election commissioner said that the ECP will decide whether or not a forensic audit of the video needs to be conducted.

"The video has been doing the rounds since 2018, yet no action has been taken yet," remarked the chief justice.

"Isn't the election commission trying to end corruption from the electoral process? Just look at what is being said about the [Senate] elections," the chief justice said.

The election commissioner then said that he would bring up the topic of open balloting under discussion.

ECP should take all stakeholders into confidence, says PPP's Raza Rabbani

The attorney general also gave his recommendations to the election commissioner on holding transparent polls. The chief justice urged the commissioner to review those recommendations.

"The attorney general is representing the government," objected the PPP's Raza Rabbani.

"The recommendations of a single party will not be acceptable for the rest. All stakeholders should be taken along," he said.

Rabbani said that there was no time for a constitutional amendment before the Senate elections, to which the chief justice said that that was not what the court was suggesting.

"Holding transparent elections is the ECP's job. All politicians talk of corruption in Senate elections," said the chief justice. "The election commission is aware of everything that happens."

Justice Ahsan explained that the apex court was tasking the election commission to stop corrupt practices under the existing laws, adding that the ECP had full authority to draft roles for the electoral process.

"We are not asking you to do away with secret balloting," said Justice Ahsan.

The hearing was subsequently put off till tomorrow.