ISLAMABAD: The Supreme Court hearing of the Presidential Reference on the Senate election has entered in its decisive phase as the bench directed Mian Raza Rabbani to conclude his arguments today, ARY News reported on Wednesday.
A five-member bench of the apex court headed by Chief Justice Gulzar Ahmed hearing the presidential reference seeking the open ballot vote in the upcoming Senate elections.
“Here various references given over the voting in lower house, while the learned court considering over the issue of the vote in the upper house,” Raza Rabbani resuming his arguments said.
“Secret ballot is secrecy of the voter. A voter could share his or her secret with another voter but not with the state,” the lawyer argued.
“The constitution intends to avoid any pressure over the voter. If the vote becomes identifiable, it would not keep the secret of the voter,” Rabbani said.
“The supreme court of Ireland had ruled that the identity of the vote could not be disclosed, no person could be forced to disclose the identity of the vote,” Rabbani further argued.
“The constitution have no reference of free vote for the Senate,” Justice Ijazul Ahsan said. “It is not written in the constitution that the vote for the Senate will not be secret,” Rabbani replied.
“The constitution also not saying that the Senate election will be held under the law,” Raza Rabbani said.
“If a party wins two seats instead of its estimated strength of eight seats, will it be according to its mandate,” Justice Ijaz said.
“If the court decides for the open ballot then the upcoming Senate election will be held under an adhoc law,” Rabbani said. “A temporary law has been present in the form of an ordinance with a duration of 120 days,” he said.
“Presently the issue of the ordinance has not been under the consideration”, Chief Justice said.
“I am talking about a constitutional point and not the ordinance”, Rabbani said. “According to the constitution senate election could not be held under an adhoc law”, Rabbani said.
“We have noted your point”, the Chief justice said.
After conclusion of Mian Raza Rabbani’s arguments, People’s Party Parliamentarian’s lawyer Farooq H. Naik started his arguments before the court.
“The members cast votes in their individual capacity and for individual votes secret ballot is essential,” Barrister Farooq Naik said.
“If the People’s Party has told its members to cast their votes as they want,” Justice Yahya Afridi questioned. “This decision made by the party leadership and I am only a member,” Naik replied.
“The party leadership have no role in democracy. The party takes decisions not its leadership, no one could impose decisions, as decisions taken in a democratic manner,” Chief Justice Gulzar remarked.
“On reserved seats members being selected and no election takes place,” Naik said. The parties provide their lists for the reserved seats,” he further said.
“Are all MPAs free to cast their votes as they want,” Justice Ijazul Ahsan asked. “Following the party line is not compulsory for the Senate election,” Farooq Naik replied.
“How the parties decide to vote whom. If they maintain minutes of meetings,” the chief justice questioned. “Political parties maintain minutes of their sessions,” the counsel replied.
“The parliament regularly votes over different bills, some time the opposition cast votes to government bills, in other time treasury votes the opposition bills,” Naik said.
“The Senate election conducted under the constitution and not the law,” the lawyer further argued.
“The presidential reference raises a political question and not a legal issue,” he said.
PML-N’s Barrister Zafarullah started presenting his contentions said that the Article 226 could be interpreted in the historic perspective. “During preparation of the Election Act the issue of secret vote was also discussed. All political parties including the PTI had supported the secret ballot vote,” Zafarullah said.
“Provincial assemblies can be dissolved after the senate election. In another election some other party could come into the power. If the proportional representation belongs to political parties, what will be the position in Senate in the next government,” PML-N lawyer asked.
“The court is aware of the ground realities,” chief justice said. “An end of the secret ballot will be a debacle for democracy,” the PML-N lawyer argued.
JUI counsel Jahangir Jadoon in his arguments said that the secrecy is the right of the voter. All votes should not be opened due to a few people. “If political parties intend, they could curb the corruption,” Jadoon said.
He also urged for leaving the issue of the Article 226 to the Parliament.
Barrister Salahuddin, the counsel of the Sindh High Court Bar Association, argued that the court should avoid its opinion over the reference. “The court should observe caution, the judicial opinion could unleash a political dispute,” Bar’s counsel said.
“The opinion of the supreme court used to be taken in the absence of a way out,” Barrister Salahuddin said.
“All references filed in the constitutional crisis situation, while currently there is no constitutional crisis,” the lawyer said.
“The Attorney General not talked about what the law is saying but he argued about what the law should be,” Barrister Salahuddin said.
“The court will only answer the questions asked in the reference. The parliament will decide about yes or no for the secret ballot,” chief justice said. “If the constitution affirms secret ballot, it will be so,” Justice Gulzar Ahmed said.
“It is upto the parliament to get rid of corruption in the electoral process,” Barrister Salahuddin said. “Supreme Court is not an alternative of the parliament,” the chief justice said. “All state institutions should work in their jurisdictions. “We will not encroach the authority of the parliament,” the chief justice said.
“If the Speaker’s election can be held under the constitution then why not the Senate election,” the SHCBA counsel questioned.
The Sindh Bar’s counsel concluded his arguments on the presidential reference and the court adjourned further hearing of the matter till 12:00 on Thursday (tomorrow).
