Presidential reference on Senate ballot mode: Apex court likely to announce its opinion tomorrow

ISLAMABAD: The Supreme Court will announce its opinion on the Presidential reference whether the upcoming Senate election be held through a “secret or open ballot” tomorrow (Monday) after it reserved its opinion on the reference on February 25th.

Chief Justice Gulzar Ahmed has said that the apex court will confine only to the constitutionality of the Senate elections.

President Dr Arif Alvi, on December 23rd filed a reference in the apex court under Article 186 of Constitution seeking opinion, “Whether the condition of “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 of Pakistan, speaker and deputy speaker of National Assembly, chairman and deputy chairman of Senate, speakers and deputy speakers of the provincial assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017.”

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Yahya Afridi has been hearing the reference on the Senate elections for almost two months.

The reference stated:, among other things, that “the elected members of the Assemblies who form the electoral college for election to the Senate are not free agents of their will as such. Having been elected on [a] party ticket, they are bound by party discipline. Therefore, when voting in the election for Senate, they act as agents and trustees of their party. While they are absolutely free to debate within their respective political parties for the selection of candidates for Senate, but once the party has selected its candidates and awarded party tickets, the members owe an obligation to follow the decision of the party and vote accordingly. If the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process.”

According to the reference the interpretation of Constitution and laws is the exclusive domain of the judiciary with the Supreme Court as the final court.

The Attorney General for Pakistan and Advocates General of all the provinces and the Islamabad Capital Territory (ICT), except Sindh’s, have supported the reference.

However, Pakistan People’s Party, Pakistan Muslim League-Nawaz, Jamiat Ulema-e-Islam-Pakistan, Jamaat-e-Islami, Pakistan Bar Council, Sindh High Bar Association, and Hassan Irfan have opposed it.

They have urged the apex court to return the reference without rendering its opinion on it as the question involved is “political”.

They maintained that the Senate elections are under the constitution and should be held through a “secret ballot” as provided in Article 226 of Constitution.

The ECP statement has said: “Article 59, 219, 224(3) & (5) of the Constitution provide for elections to the Senate and, ‘Election of the Senate is election under the Constitution’ for the purposes of Article 226 of the Constitution, which says; ‘All elections under the Constitution, other than those of the prime minister and the chief minister, shall be by secret ballot’.”

Copyright Business Recorder, 2021