• Says no one can stop govt from issuing ordinance • JUI-F’s petition seeking ruling on issuance of ordinance to be heard along with main case • Rabbani says no political party opposes concept of transparency • PBC terms govt move a bid to ‘manipulate’ Senate polls

ISLAMABAD: Chief Justice of Pakistan Gulzar Ahmed on Monday observed that the government had entered into the domain of speculations by promulgating an ordinance on open and identifiable ballot for the upcoming Senate elections.

“I don’t know how they have done it, but then no one can stop them from doing this,” the chief justice observed.

The observation came when at the outset of hearing in the presidential reference on open ballot for the Senate elections, senior counsel Kamran Murtaza, representing the Jamiat Ulema-i-Islam-Fazl (JUI-F), invited the Supreme Court’s attention towards the unexpected promulgation of the ordinance at a time when the apex court was seized with a presidential reference and by doing so the government had pre-empted the court’s answer to the reference.

Justice Ijaz-ul-Ahsan, however, observed that the ordinance was conditional and would “die” once the Supreme Court gave answer to the question being asked through the reference. He said the petitioner could approach the Islamabad High Court (IHC) if they had any grievance.

The counsel argued that the court should take notice since the promulgation of the ordinance in this manner and at this time undermined the judicial proceeding on a pending matter as well as the sovereignty of parliament and the supremacy of the Constitution. He urged the SC to order that the ordinance was issued with mala fide intent and declare that by promulgating the ordinance, the government had attempted to undermine the judicial proceedings.

The chief justice, however, observed that the petition would be registered and heard along with the main case and issued notices to the respondents in the case.

Senator Raza Rabbani, who is appearing in his individual capacity, pleaded that in very bizarre circumstances the government was creating a situation when the reference was already pending. This would also give rise to multiple litigations, he feared.

Representing the Sindh High Court Bar Association (SHCBA), senior counsel Salahuddin Ahmed requested the Supreme Court to determine the vires of the ordinance by invoking Article 184(3) of the Constitution.

The chief justice observed that the court was not bothered with the promulgation of the ordinance except that it had taken note of it.

Attorney General for Pakistan (AGP) Khalid Jawed Khan brushed aside the impression that any pre-emptive step had been taken and argued that the ordinance was promulgated in the context since the Election Commission of Pakistan (ECP) was going to issue the Senate elections schedule on Feb 11 when the apex court was hearing the reference, explaining that the entire exercise would become academic if the court would give its opinion after Feb 12.

The chief justice also observed that had it been pre-emptive, the court would have struck it down.

How this was an attack on the judiciary or the parliament if the open ballot ordinance would only “ensure transparency”, argued the AGP while regretting that press conferences were addressed without even reading section 122(6) of the Elections Act, 2017.

During the hearing, Justice Umar Ata Bandial observed that the Senate represented the House of elders and mature members who never squabbled and without which the legislation could not pass. But there was a squabble on a daily basis in the National Assembly and the same also happened on last Thursday when the constitutional amendment for the open ballot could not pass through from the National Assembly, the judge said.

“I’m also compelled to observe that we also have very good politicians of integrity and we should not colour all of them with the same brush,” Justice Bandial remarked, observing that one should be careful while labelling politicians for indulging in corrupt practices.

The attorney general then observed that parliamentarians in Pakistan were more civilized than those in many other countries where even chairs were hurled against the opponents.

The chief justice also recalled the recent incident where a mob vandalized the Capitol Hill in Washington DC. “This is all happening in the world,” Justice Ahmed regretted.

Citing a number of judgements, the attorney general argued that no corrupt persons should be allowed to enter the parliament and feared that “we are dealing with a situation where people with bags full of money are present in Islamabad and lurking to pollute the entire electoral system. What relief a senator would provide to the people if he paid Rs200 million to become a member of the house.”

At this, the chief justice while pointing towards Mr Rabbani asked what objection political parties would have if the government was trying to bring “transparency and fairness” in the electoral process. Mr Rabbani assured the court that no political party opposed the concept of transparency that was also reflective in the Whole Committee of Senate 2016 but the basic question was not of the transparency and he would explain when his turn come to argue. The CJP then reiterated what happened on Thursday in the National Assembly if no political party opposed the concept of transparency.

When the attorney general remarked that Mr Rabbani was in the courtroom in his personal capacity as none of the major political parties had come to the Supreme Court, Mr Rabbani said the Pakistan Peoples Party (PPP) was before the Supreme Court through the Sindh government besides the JUI was also a party.

The chief justice observed that the Sindh government was a province and not a political party. Mr Rabbani explained that in the parliamentary system, a government was formed by a political party besides political party as well as the government sink and swim together. The attorney general, however, took exception to the reply by stating that he was surprised that the Advocate General for Sindh was representing the ruling PPP. “Being the AGP, I don’t represent PTI,” he remarked.

He then argued that it had been the consistent trend that honest electoral process ensuring transparency should be done and this reference was also part of that trend and when there were multiple interpretations then the one which advanced transparency should be preferred.

Justice Ahsan also observed that the framers of the Constitution had visualized free, fair and transparent elections and that the ECP had to ensure transparency in the process.

Emphasis had also been made to ensure accountability of political parties and that only the party should be allowed to form the government that won majority in the elections, he remarked. This dream could only be realized if a freelancer who was not committed to the directions of the party lines should not be awarded party ticket to contest the polls, he added.

PBC resolution

Meanwhile, the Pakistan Bar Council (PBC) executive committee in a meeting passed a resolution condemning the mode and manner of promulgating the Election (Amendment) Ordinance, 2021.

The resolution dubbed the promulgation of the ordinance as “an endeavour to control and manipulate the coming Senate elections, in disregard to all legal principles and ethics”. It said such an act was “blatant violation of the constitutional norms, morality and democratic values, and which is also in conflict with provisions of the constitution particularly its Article 226”.

While expressing dismay over the government move, the executive committee declared the exercise an “attempt to influence the Supreme Court in adjudicating upon the presidential reference, but also to undermine the independence of the judiciary”.

The committee authorised PBC Vice Chairman Khush Dil Khan to move a constitutional petition in the Supreme Court, under Article 184 of the Constitution, to challenge the issuance of the ordinance.

Published in Dawn, February 9th, 2021