• Providing absolute secrecy to Senate vote to encourage illegal means, observes judge
• PPP wants Attorney General to explain ‘bribery, horse-trading allegations’

ISLAMABAD: Advocate General for Sindh Salman Talibuddin told the Supreme Court on Thursday that an answer to the question put before it through the presidential reference in the affirmative would lead to amending the Constitution.

“Article 226 of the Constitution is very clear and accepting the presidential reference would in fact mean amending the Constitution,” argued the Sindh AG.

Headed by Chief Justice Gulzar Ahmed, a five-judge Supreme Court bench had taken up the presidential reference posing the question whether the condition of secret ballot under Article 226 of the Constitution also applied to Senate elections.

The Sindh AG contended that an entirely inappropriate question has been brought before the apex court.

He said the reference itself admitted that the federal cabinet had been advised that the requirement of the secret ballot under Article 226 of the Constitution referred only to the elections under the constitution and the Senate polls were not the elections under the Constitution.

But the chief justice observed that the court was considering as to how the cabinet was advised and then the government tried to move a constitution amendment bill before parliament and finally an ordinance was promulgated.

Referring to the admission by Attorney General for Pakistan (AGP) Khalid Jawed Khan that he thought that moving the reference to the Supreme Court was the safest course instead of shouldering the burden himself, the Sindh AG wondered whether it was a proper way to bring a question of law by invoking the advisory jurisdiction of the Supreme Court.

He argued that the question of law in the reference had been phrased in a clever manner by revolving it around the instances of horse-trading and bribery by lawmakers.

“This is a political question and the court should better avoid it since time and again the apex court itself has held that the court never involves itself in issues relating to questions of political nature,” the Sindh AG argued.

The chief justice however observed that the constitution itself was a political document and the court always interpreted it.

There had never been any concrete evidence of allegations of horse-trading or bribery or corrupt practices (in Senate polls), the Sindh AG said and wondered would the apex court give a definitive answer to a question on mere hearsay.

He contended that Article 218(3) of the Constitution was directed towards the Election Commission of Pakistan (ECP) to organise the elections and after the elections were over ballot papers were sealed and even the returning officers did not have access to it.

“Even if we accept the contention on the basis of which the reference has been filed that the votes are sold and open ballot would be an obstacle in the way of corruption, the apex court still could not ensure that no horse-trading was done in future.

Jutice Ijaz-ul-Ahsan, a member of the bench, wondered what overriding public interest would be served if the ballot remained secret, adding what was being agitated was that secrecy of the ballot should be maintained at the time of casting of votes but subsequently after whenever a question or allegations surfaced that the vote was cast in consideration of the exchange of money, the ECP or a tribunal should have the means to know who did it.

Justice Ahsan observed that when there was distortion whether the voter had voted against the party line, then the ECP or the tribunal should have the means to probe the matter.

“You cannot shut the doors by giving blanket secrecy till eternity,” Justice Ahsan said, adding that the best evidence in case of exchange of money before voting was the vote itself and providing absolute secrecy would mean encouraging illegal means.

Justice Umar Ata Bandial, another member of the bench, also observed that the constitutional provisions to guard against corrupt practices would be rendered redundant if the ECP was disabled from accessing the ballot in cases of criminality.

“We would not be defeating the secrecy by making the ballot accessible to the ECP or the tribunal,” Justice Bandial observed, adding that it provided deterrence against corrupt practices.

A number of assumptions were being taken, the Sindh AG contended. “Even if we find out the culprit by having access to the vote, would it amount to concrete evidence that the vote was cast in consideration of bribe or exchange of money,” he asked.

The chief justice observed that the law officer was arguing on different premises and recalled that even the parliament had spoken up by passing resolutions against horse-trading and how the Charter of Democracy – an important document in the history of Pakistan, which was signed between the two major political parties – had abhorred the menace of horse trading.

The chief justice observed that the court was hearing the Sindh AG not as the counsel of the PPP but as the law officer of the province. He said primary evidence against corrupt practices was the vote itself by which the voter could be identified.

However, the Sindh AG contended that the preference of the voter in the ballot would not lead to the determination that he had indulged in corrupt practice as the ballot could never be a primary evidence.

He said that proportionate representation only applied to the provinces by means of allocating slots for general seats and seats for technocrats, women or minorities, but not to the political parties.

Earlier AGs of Punjab, Balochistan and Islamabad Capital Territory (ICT) argued. ICT AG Niazullah Niazi cited a 1997 case in which a voter had written a slogan against Pakistan at the back of the ballot paper but his identity could not be determined till date.

Meanwhile, PPP secretary general Nayyar Hussain Bokhari, who was also present in the Courtroom No. 1 where the proceedings were held, has requested the Supreme Court to seek an explanation from the top law officer of the federal government over his assertions regarding use of bribe and horse-trading in Senate polls.

In a statement, Mr Bokhari said the AGP had questioned credibility of political parties and therefore he was under obligation to produce evidence to substantiate the allegations or should tender his resignation over his allegations.

Published in Dawn, February 19th, 2021