The Supreme Court has adjourned till Monday a hearing on the presidential reference seeking an opinion on open balloting for the upcoming Senate elections.
A five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi heard the reference on Thursday with the proceedings revolving around ascertaining what the law has to say about the Senate composition and the election procedure.
Attorney General for Pakistan Khalid Jawed Khan said that he wanted to start his arguments with questions from Justice Yahya Afridi.
Why the govt has approached the SC
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 regarding the interpretation of Article 226.
Justice Ijaz said that it is the Parliament that makes laws and the Supreme Court interprets 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 has a supreme court or a constitutional court to interpret constitutional matters,” said the AGP, adding that Pakistan’s Supreme Court is the constitutional court.
“In many countries, including Bangladesh, India, Sri Lanka and the United States, the Supreme Court interprets the Constitution in constitutional and political matters,” he said
The attorney-general said if political matters prevail over constitutional matters, then the court avoids these matters. The Supreme Court has also interpreted political issues several times, he added.
He noted that the Supreme Court had often referred political matters back to the Parliament.
The attorney general said that the Senate elections are held according to the law (Election Act, 2017) and not the Constitution. “This is why the government has approached the Supreme Court to get its opinion on the matter.”
Senate composition, election procedure
During the course of the hearing, the justices asked the attorney-general to explain what the law entails when it comes to the composition of the Senate for elections and what the difference between an open and secret ballot is.
“The government should make clarifications about the Senate elections,” Justice Umar Ata Bandial said, adding: “What is the procedure for determining the ratio for Senate elections?”
Responding to the court’s queries, the attorney general said that the composition of the Senate has been mentioned in the Constitution, and the procedure is given in the Election Act, 2017.
According to the attorney general, Members of the Senate are elected in proportion to the size of the National and Provincial Assemblies. He added that whereas National Assembly elections are held directly, Senate elections are indirect, not direct.
The chief justice asked what the law says about the voting process itself, with Justice Bandial further asking where in the Election Act the procedure is outlined.
“Chapter 7 of the Election Act, 2017 gives the full procedure,” replied the attorney general.
Justice Ijaz Ul Ahsan further noted: “There are 26 sections in the Act that deal with Senate elections.”
Justice Yahya Afridi said that the Act calls for secret balloting for the election of Senators.
Justice Ijazuz Ul Ahsan then asked the attorney general to confirm whether the government has raised the question that if the election for minority seats is not done via secret balloting, then why the method is used for Senate elections.
Amid the various observations, the chief justice noted that India has opted for open balloting and has clarified the entire procedure.
Difference between open and secret balloting
Justice Bandial then asked what the difference in procedure between open and secret balloting is.
The attorney-general 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 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.