Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday said that a political party was more important than a party leader in the democracy.
The Chief Justice made these remarks while heading a five-member larger bench that had taken up a Presidential Reference seeking open ballot for the upcoming Senate elections.
At the outset of hearing, Advocate Kamran Murtaza, counsel for the Jamiat Ulmae Islam (JUI), said the Attorney General might had misunderstood and he would argue the case before the court. The Chief Justice responded that the court would hear his arguments.
Pakistan People’s Party (PPP) central leader Raza Rabbani, continuing his arguments, said he would try to conclude his arguments in thirty 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.
Raza Rabbani said that there were examples of voting in the lower house while the court was hearing the matter of upper house of the Parliament. The secret ballot was the voter’s own secret while a voter could share his secret with another voter and not with the state, he added.
He said that this was the intention of the Constitution so that there was no pressure on the voters. If the vote was made identifiable, it would not be just a voter’s secret, he added.
He said that the Constitution protected the freedom of the voter. Identification of vote was tantamount to depriving a voter from his freedom, he added.
He said that the question was whether the ballot was secret or not. The ballot was not secret, but its secrecy commenced with the ballot paper coming into hands of the voter, he added.
He said that the voter was also bound not to show vote. The secret ballot was protected in the Constitution, he added. He said that voting also did bind state institutions and officials that they could not see the vote cast by a voter.
Justice Ijaz Ul Ahsan, a member of the bench, asked the counsel that his argument was regarding the National Assembly elections. Voting for the National Assembly was free and free vote meant freedom of the voter, he added.
He said that there was no mention of free vote for Senate so it did not have to be secret. There was no reason to keep the vote secret with the idea of ‘proportional representation’, he added.
Raza Rabbani said that political parties had proportional representation in the National Assembly while the provinces had proportional representation in the Senate. If the court allowed an open ballot, the current election would be held under a temporary law and this provisional law already existed in the form of an ordinance, he added.
To this, the Chief Justice responded that the court was not hearing the matter of ordinance.
Raza Rabbani said that he was not arguing about an ordinance but a constitutional point. According to the Constitution, elections of the Senate could not be held under a temporary law, he added.
The Chief Justice said that the court had noted his point.
Raza Rabbani said that the court only had to give an opinion in the presidential reference. The Chief Justice said that the court would only have its opinion over the reference.
Raza Rabbani said that the court should also consider the triangle of powers. The court only had to decide whether the Senate elections were held under the Constitution or not and next task was for the Parliament, he added.
He said that the Parliament had to decide whether the vote in the Senate election would be open, identifiable or secret. The Parliament had to decide whether a constitutional amendment was required for Senate elections or a change in the law, he added.
He said if the Supreme Court stated the Senate elections were not held under the Constitution, then the Presidential Ordinance would come into force. The Presidential Ordinance was applicable only for 120 days, he added.
He said if Parliament did not amend the Constitution or the law, then it would be deemed that the Senate elections were held under a temporary law.
Advocate Farooq H Naek, counsel for the Pakistan People’s Party, said that there was individual vote for Senate elections and not a party vote.
The Chief Justice asked the counsel whether he was saying that there was a free vote in Senate like National Assembly.
Justice Yahya Afridi asked had the PPP chief told his members that they were free to cast their votes for whomever they want? Naek said that this was the job of the party
The Chief Justice said that political parties were more important than party heads in the democracy. He asked the counsel to argue on this point of law.
Justice Ijaz said that there was selection in the political parties, instead of elections.He asked was a Senate voter free to vote on his own?
Naek replied that Senate voter was free to cast his vote against the party policy. If a voter deviated from party policy, he/she would not be disqualified, he added.
The Chief Justice said that if the party decided and the voter also decided about vote, then there was no secrecy. He asked how political parties took the decisions.
Naek responded that the decisions were taken in the Central Executive Committee meeting.
Justice Bandial asked what would happen if someone violated party discipline? Naek responded that there was freedom for the Senate elections and there would be no disqualification under Article 63A.
He said that the Senate elections were held under the Constitution, instead of law. He said that the question was whether a vote could be identified after its casting. The vote could never be identified, he added.
He said that the proportional representation was divided into three parts. Many times, the opposition voted for the government and the people on the government bench voted for the opposition, he added.
He said that the Constitution declared the vote completely secret. Secrecy was essential for constitutional democracy, he added. He said that the voters were protected to make their own decisions and they were also required to keep their vote secret, he added. The Chief Justice said that these were not for Senate elections.
Farooq Naek said that the Senate elections were also held through secret balloting. The Senate elections were also kept secret in the Election Act, he added.
He said that the Election Act was an act and it could only be changed by the Parliament. The court should distance itself from the matter, he added.
Justice Ijaz asked what would happen if Parliament stated that Senate elections would be held through open ballot?
Farooq Naek said that the Supreme Court had the power to annul the unconstitutional legislation. He said that arguments like bribery, horse trading were political, and not the constitutional ones.
He said that the apex court decision should be in accordance with the Constitution.
The counsel for the JUI said that the secrecy of the entire election process could not be finished for four or five votes.
He said that a political question had been asked in the reference. The Court should refer the matter to Parliament to answer the political question, he added.
Barrister Zaffar Ullah said that the Supreme Court should interpret the matter for the Senate elections, keeping in view the historical evolution. There were international resolutions to protect the secrecy of the vote, he added.
Addressing the counsel, the Chief Justice said that the court was not considering the question he was discussing.
The counsel for the Islamabad Bar Association said that the Supreme Court should decide whether the question raised in the presidential reference was worth answering or not.
The Chief Justice said that the court was not considering anyone’s goodwill here.
The counsel pleaded the court to annul the reference as the question raised in the presidential reference was purely political.
Advocate Salahuddin, counsel for Sindh High Court Bar Association, said that his constitutional responsibility was to assist the judiciary. This was a serious political crisis and the court had to decide wisely, he added.
He said that the issue of whether or not to recognize 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 was illegal. All parties except the ruling party were 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 could there be proportional representation through a single transferable vote?He asked whether elections held under the Constitution were secret.
He said that matters related to the secret ballot, had been left for the Parliament. Salahuddin said that an amendment to this issue was already pending in Parliament.
He said that the government also sent a reference and issued an ordinance.The Chief Justice said that the court was not a parliament, nor it could limit its jurisdiction.Salahuddin said that the advice of the court had been sought through reference.Later, hearing of the case was adjourned till Thursday.