ISLAMABAD: A Supreme Court judge observed on Wednesday that the government had come to seek a legal opinion from the apex court under its advisory jurisdiction on a political issue but its thrust was on morality.

“Your thrust is on morality but the issue is political and you are seeking a legal opinion,” observed Justice Yayha Afridi while pointing towards Attorney General for Pakistan (AGP) Khalid Jawed Khan.

Justice Afridi is one of the members of a five-judge SC bench which is hearing a presidential reference seeking court’s opinion whether the condition of secret ballot under Article 226 of the Constitution applies to the Senate elections or not.

Earlier, during one of the proceedings, Justice Afridi had also raised the question of maintainability of the presidential reference by asking why the court should enter into the controversy when it should not be dragged into the political arena.

Presidential reference asks if condition of secret ballot under Article 226 applies to Senate elections

On Wednesday also Justice Afridi asked the AGP why the government was involving the Supreme Court in the matter when it could bring amendments and decide the matter in parliament.

The AGP said the government was asking the Supreme Court to interpret Article 226 of the Constitution and explain whether the Senate elections fell within the scope of this provision or not. And the consequences of the answer to the question whether it should be done through secret ballot or open ballot would then be taken care of by parliament itself at a later stage.

The AGP also referred to a 1971 presidential reference which had sought the Supreme Court’s opinion whether a resolution could be moved before parliament for the recognition of Bangladesh and the court had rendered the opinion that such a resolution might be tabled in the assembly.

AGP Khan argued that he could cite at least 11 examples where the questions which in the first instance seemed to be political but at the end the Supreme Court interpreted these, like in the cases of dual nationality where the members were also disqualified, appointment of judges, declaration of assets, and filing of nomination papers.

There are two routes to the elections — one through buying and selling of votes by indulging in horse-trading and the other is holding elections based on a purist and transparent system, he argued, adding that the Supreme Court must give the answer for the advancement of a system which ensured transparency in the electoral process.

“Therefore, this question has no political overtones,” he said, adding that the SC judges should bother about what had been stated in the media.

“According to you, free vote means secret vote,” Justice Ijaz-ul-Ahsan said, adding that the underline philosophy which the AGP was propagating was that if a voter wanted to cast a vote, independent of the directives of the political party he belonged to, then he should have the courage to stand up and say openly but then also be ready to face the consequences which might come in the shape that his party might disown him and not award party ticket for the next elections.

When the members of a provincial assembly participated in the elections to elect senators, the AGP argued, it was not done under a free vote and when it was not a free vote then it could not be done through a secret ballot. For the Senate elections, he said, a member of the provincial assembly (MPA) was the carrier of the party conscience because he himself was elected under a particular party ticket.

The AGP contended that if someone believed that he was free to vote for anyone then he should resign first and come after contesting elections independently because an MPA was a trustee and thus bound by the discipline of the political party he belonged to.

But Chief Justice Gulzar Ahmed, who was heading the bench, observed that the concept of trustee was alien to the Constitution.

Referring to Article 225 of the Constitution, which states that the elections to the National Assembly or the Senate or a provincial assembly cannot be called in question except by an election petition to the election tribunal, the AGP said this provision did not apply to elections of the president, prime minister, speaker and deputy speaker of the National Assembly and chairman and deputy chairman of the Senate. “This clearly indicates the intention of the framers of the Constitution,” he said.

Besides, he explained, elections of the president and prime minister could not be challenged under any law because these were held under the Constitution and not under the law.

The AGP said the Constitution provided for creation and composition of the National Assembly, Senate and provincial assemblies and being representative in character, these bodies were to be constituted through elections. Thus, while these bodies were created by and under the Constitution itself, he added, their elections being a long and complex process spanning over multiple stages were conducted under the law which presently was the Elections Act, 2017.

In contrast, AGP explained, office such as the president was not only created by and under the Constitution, but its election process is also provided under the Constitution itself. “This is a crucial distinction for the purpose of interpretation of Article 226 which is the subject matter of the present reference,” he said.

Published in Dawn, January 14th, 2021