ISLAMABAD: The Supreme Court will resume hearing on the presidential reference, seeking the court’s opinion on open ballot for Senate elections, today [Monday], two days after President Dr Arif Alvi promulgated the ordinance in this regard.
The five-judge larger bench, headed by Chief Justice Gulzar Ahmed and including Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi, is hearing the presidential reference seeking top court guidelines over open ballot in the upcoming Senate election. Attorney General Khalid Jawed Khan will represent President Dr Arif Alvi.
On Saturday, President Dr Arif Alvi issued the Election (Amendment) Ordinance 2021 under which the upcoming Senate elections will be held on an open ballot.
The ordinance will be effective with immediate effect subject to a pending opinion by the Supreme Court on the matter. The amendment has been introduced in section 33, 86 and 122 of the Election Act 2017.
“Provided that in case the Supreme Court of Pakistan gives an opinion in Reference No. 1 of 2021 filed under Article 186 of the Constitution, that elections for the members of the Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March, 2021 and thereafter shall be conducted by the Commission through open and identifiable ballot,” reads the Ordinance.
According to Section 226 of the Constitution: “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot”.
The Ordinance further states that after the Senate polls, if the head of a political party wishes to see the ballot cast by any member of his party, the Election Commission of Pakistan shall show them the same.
On the last hearing of the case on Thursday, the chief law officer of the country contended the constitution demands transparency in the electoral process. AGP Khan submitted if someone will be expelled from the party in open ballot, the affectee has the right to challenge the issue in court for remedy.
Responding to observation of a member of the bench Justice Umar Ata Bandial that apparently it seems open ballot clause was not added to the 18th constitutional amendment deliberately, the AGP submitted open ballot is the first step, while in the next step the party heads will become accountable, saying perhaps the makers of the 18th amendment were lacking political will.
Justice Bandial remarked the Senate stabilises the parliamentary system, adding the National Assembly undergoes political storms, while not the Senate to which the AGP responded that someone having courage to stand as per his or her conscience, should come in open saying a person should not be disqualified if he or she votes against the party line.
Chief Justice Gulzar Ahmed asked the AGP to advance arguments over a point as to why the upper house is necessary whereas a member of the bench Justice Ijazul Ahsan observed the provinces have equal representation in the Senate. Khalid Javed Khan submitted that the assembly is the house of people whereas the Senate is of the federation.
Talking to TLTP a former additional secretary of the Election Commission of Pakistan said the incumbent government has to table constitutional amendment for open ballot in the Senate election, saying if the government amends the existing Election Act for the purpose without constitutional amendment then major legislation (constitution) provision will remain in field and the subordinate legislation would be presumed ineffective. – TLTP