ISLAMABAD: Attorney General for Pakistan (AGP) Khalid Jawed Khan on Tuesday feared that the entire exercise of hearing the presidential reference on open ballot for coming Senate elections by the Supreme Court would turn academic if the proceedings were not closed by Wednesday (today).

Otherwise, the Election Commission of Pakistan (ECP) would not be left with ample time to complete the procedures that included printing of ballots for conducting the March 3 Senate elections, the AGP argued.

He opposed the idea of providing the right of audience to two premier lawyers’ bodies before the Supreme Court in the presidential reference.

Chief Justice of Pakistan (CJP) Gulzar Ahmed observed that the purpose of invoking the apex court’s advisory jurisdiction by the president could not be made futile.

Different lawyers told to furnish synopses by evening

“This is not a wrestling match that everybody should be provided the opportunity,” the AGP said, adding that the Pakistan Bar Council (PBC) and the Sindh High Court Bar Association (SHCBA) could not claim audience before the apex court as of a matter of right.

“I will concede if they bring a petition against the recent storming of the Islamabad High Court,” the AGP said.

He also opposed the idea of providing an opportunity to Farooq H. Naek, who is representing the PPP-Parliamentarians, when Senator Raza Rabbani has already argued on behalf of the PPP.

Mr Naek insisted that the PPP-P was a real stakeholder since it had awarded the tickets to candidates for the coming elections.

“Tomorrow, the PSF, also a subsidiary of the PPP, will come before the Supreme Court and demand that it be heard,” the AGP said.

Advocate Salahuddin Ahmed, who was representing the SHCBA, asserted that the Senate and the National Assembly operated for the people of Pakistan and, therefore, the AGP was under misconception that the premier bar associations were not stakeholders. “We have a different point of view,” he emphasised.

However, the chief justice, who was heading the bench, allotted a slot of 30 minutes each to Mr Rabbani, Mr Naek, Mr Ahmed and Barrister Zafarullah Khan of the PML-N and asked different counsel to furnish their synopses by Tuesday evening.

Justice Ijaz-ul-Ahsan, a member of the bench, said that the present proceedings were not adversarial as they were under the advisory jurisdiction of the court for which it could seek assistance of anyone it thought necessary. He also endorsed that as a matter of right nobody could claim right of audience before the court.

It is likely that the proceedings may be closed on Wednesday (today) in case arguments of the counsel may not spill over the next day.

At the outset, the chief justice drew attention of the AGP to the 1971 judgement of the Ireland Supreme Court in the McMahon case in which it was held that the words “secret ballot” meant a ballot in which there was complete inviolable secrecy. The court had also held that Section 26 of the Irish Election Act 1923 was inconsistent with the Ireland Constitution — a constitution which is similar to the Constitution of Pakistan.

The Section 26 of the Ireland Election Act talks of printing a number on the back of the ballot paper to which a counterfoil should be attached with the same number printed on its face and at the time of voting, the ballot paper should be marked on both sides with an official mark.

The AGP argued that the reference related to the Senate elections, but Mr Rabbani had contended that the law point did not revolve around elections of the upper or lower house of parliament, rather on the secret ballot.

The CJP endorsed that the basic point on the judgement was secret ballot.

Senator Rabbani cited the Presidential Election Rules 1988, saying it granted unbridled powers to the ECP to make any rules for the conduct of the presidential elections since Schedule II of the Constitution was not sufficient.

Referring to different provisions of the Constitution, Mr Rabbani argued that the Elections Act 2017 should also be construed as the command of the Constitution as it also stood at the same pedestal as that of the presidential elections rules.

When the PPP counsel referred to the Rules of Procedure and Conduct of Business in the National Assembly to explain that though the elections of the speaker and deputy speaker were stated in the Constitution, the nitty-gritty of how to conduct the elections were explained in these rules, Justice Ahsan observed that these rules related to the elections of certain offices but the present issue related to the election of the Senate, which was a body.

Mr Rabbani contended that the principle being enunciated that only those elections the procedures of which were mentioned in the Constitution could be called elections under the Constitution was flawed.

“It is not feasible to conduct the elections while remaining within the confines of the Constitution rather you have to move out of the ambit of the Constitution to different statutes,” he said.

The CJP observed that everything law described had to be done in a bona fide manner, otherwise problems would occur because laws were always innocent.

Laws were blind as well, Senator Rabbani said.

When Justice Ahsan asked why the lawmakers did not provide similar power to the ECP for the conduct of Senate polls as they did for the presidential elections, Mr Rabbani said such rule-making powers were not conferred on the commission as it did not deal only with the Senate or National Assembly elections, but also with those of the provincial assemblies. Otherwise, there would be mayhem and confusion and probably six different modes of elections would emerge.

Therefore, to keep the principle of uniformity, such powers were not granted to the ECP, but it was given the authority to make rules for the conduct of presidential elections with the approval of the president because it was a single election; besides, the office of the president was a bi-partisan office, Mr Rabbani said.

Published in Dawn, February 24th, 2021