Observations-raised-by-the-Supreme-Court-over-disappointingThe Supreme Court (SC) will hearing the presidential reference seeking guidance on holding the upcoming Senate polls through open ballot on January 4.
A five-member larger bench headed by Chief Justice Gulzar Ahmed and comprising justices Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, will take up the reference, a private TV channel reported.
Last week, the Pakistan Tehreek-e-Insaf-led federal government had filed a presidential reference to the apex court seeking guidance about holding the upcoming Senate polls through open ballot rather than through secret balloting. Attorney General of Pakistan (AGP) Khalid Javed Khan had filed the reference under Article 186 of the constitution, invoking the court’s advisory jurisdiction.
The reference seeks interpretation of Article 226 that says all elections under the constitution, other than those of the prime minister and chief ministers, shall be held through secret ballot. The article says the interpretation of the Constitution and law is the exclusive domain of the judiciary with the Supreme Court as the final court.
“Through this instant reference, the opinion of this august court is requested on the legal question as to whether the elections for the members of the Senate do not fall with the elections held under the Constitution as envisaged in Article 226 of the Constitution with consequence that the voting could be held either open or secret ballot as may be provided in the Elections Act 2017 itself,” the reference said. It asked if the condition of ‘secret ballot’ referred to in Article 226, is applicable only to the polls held “under” the Constitution – such as the election to the office of the president, the National Assembly speaker and deputy speaker, the Senate chairman and deputy chairman and speakers and deputy speakers of the provincial assemblies – and not to “other elections”.
It described “other elections” as the election for the members of the Senate “held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.”
The reference said this question of public importance has arisen in the context of “the malaise of vote buying” that has damaged the purity of elections. Every Senate election since 1985 has generated a debate followed by the commitment to reform and promise of open balloting.
The presidential reference says there is national consensus amongst all major political parties, jurists and civil society that the electoral process should be cleansed of the pervasive practice of vote buying in elections to the Senate.
It says the desire to stop vote-buying through open ballot has manifested itself from time to time in the shape of political manifestos of major political parties, the Charter of Democracy executed in 2006 by two former prime ministers and respective heads of their political parties.
“If the coming elections to the Senate are yet again marred by vote buying owing to secrecy of ballot as has happened in the past, this would undermine the confidence of the people in democratic process.
“Resultantly, the crucial reform agenda that the government is desirous of undertaking for the welfare of the people – including strengthening and revamping the role of the regulators and regulatory authorities, reforms of criminal laws, the electoral reforms etc – will mostly likely stall causing unspeakable harm to the people,” it said.
The reference said if the Article 226 of the Constitution is amenable to two possible interpretations then this situation will advance greater public welfare and good. Through acceptance of the interpretation of Article 226, many objectives could be achieved.
It said this demonstrates that the Constitution is a living dynamic and organic document capable of redressing the ills of the electoral process without repeated amendments to the fundamental document, promote the principle of dynamic interpretation of the Constitution that reflects the will of the people and prohibits forever the entry of vote-buying undesirable candidates from entering the parliament.
