Sindh, Punjab AGs outline widely divergent views

TERENCE J SIGAMONY

ISLAMABAD: The Advocate General (AG) Sindh on Thursday said that accepting the Presidential Reference on the Senate election will in fact amount to amending the Constitution. The AG Sindh, Salman Talibud Din, submitted that the mandate of Article 226 of the constitution is clear which, inter alia, says that “all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.”

He contended the words “proportional representation” in the Senate are not for the parties strength in the assemblies, but for the representation of women, technocrats and minority members.

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Yahya Afridi, on Thursday, heard the reference regarding holding of the Senate election either through a “secret ballot” or an “open ballot”.

The Sindh government has opposed the reference and in its synopsis urged the Supreme Court to decline to give an opinion on the question in Reference regarding holding of election either through a “secret” or an “open ballot”.

It stated; “Offering an opinion on the Question will not only hamper the constitutional process of the Parliament, but also subvert the functions and privileges of the members of Parliament who are entitled to make a determination as to the proposed amendment in Election Act, 2017.”

During the course of proceedings, the AG Sindh said the question in the reference is more political than legal, adding that a number of times the apex court had stated that it should not be involved in political matters.

Upon that, the chief justice said: “We ourselves said that the Constitution is [a] political document”, adding that: “While interpreting it are we not doing politics?”

The court asked whether “the ballot can be seen after the vote is cast, the polling process is over and the candidates result announced?”

The AG Sindh replied that the ballot can be seen after the vote is polled, but it should not be known who has cast which vote, it should remain unidentifiable.

The AG argued that even if it is found that “A” has cast this vote, how it would be determined that “A” had polled vote in exchange of money?

The CJP told the AG that his arguments are based on mere surmises.

“This has been stated again and again by the parliamentarian that horse-trading takes place in the Senate election,” the CJP said, adding that the incidence of horse-trading was admitted on the floor of the House and a resolution was passed. “Pakistan People’s Party and Pakistan Muslim League-Nawaz have signed the Charter of Democracy and agreed to stop this menace [money in the Senate polls],” added the CJP.

Salman Talib said there has to be prima facie material to connect the wrongdoing, adding that “mere allegation is not sufficient.”

Punjab Advocate General Ahmed Awais contended: “the main intention of the reference is very clear as the government wants to curb the corrupt practice in the Senate election.”

He said the Parliament is the most prestigious organ of the State, adding that complete secrecy is required in the general election, but in the Senate election which is held through proportional representation by a single transferable vote, open ballot is necessary to guard against the corrupt practice.

He said the electors of the senators have double responsibility; one towards the constituencies they are representing and second, the parties, which gave them tickets. Once an MNA or MPA comes into the party discipline then he needs to follow the party line, he added.

Justice Umar Bandial noted that in Article 63A the lawmakers intentionally did not consider disqualifying a member who votes for a candidate other than his or her own party in the Senate election.

The AG Punjab argued that “as the Election Commission of Pakistan (ECP) is doing nothing to prevent the corrupt practice in the Senate election; the President therefore, has filed a reference to seek Supreme Court’s opinion.”

The Chief Justice stated that Article 59 does not speak about “secrecy”, adding that “secrecy” is not an absolute principle.

Justice Bandial said “secrecy” must not “prevail” after a member has cast his or her vote.

The AG Punjab said in indirect voting MPAs have to follow the party line.

“The members are not free but tied to the party discipline,” he added.

According to him, “past experiences have shown that the Senate elections were stolen.”

He said that Asif Zardari in a statement recently said that his party, PPP, would win 10 Senate seats.

The advocates general of all the provinces have concluded their arguments and now the counsel for the opposition parties will plead their cases.

The hearing was adjourned until today (Friday).