Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed Wednesday remarked that the Supreme Court (SC) was not a parliament and nor it could limit the latter’s powers, reported24NewsHD TV channel.

During the hearing of a presidential reference, seeking holding of Senate elections via open ballot, by a five-member larger bench of the SC, the CJP said categorically, “We will not take away powers from the parliament.”  

Justice Ijazul Ahsan remarked that the constitution provided for secret ballot only for elections for the National Assembly (NA), and not for Senate.

Responding to the comments of Senator Raza Rabbani of Pakistan People’s Party (PPP) that casting vote through a secret ballot was the voter’s right as guaranteed by the constitution, the judge said, “Free vote is only that for the NA. This does not apply to the vote for the Senate elections. And it is not necessary that it should be secret.”  

He further said if the dictum of proportionate representation was kept in view, there was no need to keep the vote secret in Senate elections.

When Senator Rabbani said even the government and state institutions’ officials were not allowed to see which candidate a person had voted for, Justice Ijazul Ahsan remarked that this argument was valid as far as the election of the National Assembly was concerned.

The senator said for the voter to disclose his choice amounted to encroaching upon his liberty.

He further said even the voter had been made bound by the constitution not to make the name of the candidate he had voted for the public.  

PPP senator retorted that Senate elections were a political matter and that there were compromises in political matters.

The senator further said that an ordinance’s life was cut short if any House of the parliament voted against it. “If the parliament does not ratify the ordinance within 120 days, it ceases to remain effective,” he argued.

When Senator Rabbani said elections for the Upper House of the parliament could not be held through ordinances, Chief Justice of Pakistan (CJP) Justice Gulzar Ahmed replied that the court was not looking into the promulgation of an ordinance by the government and that it would not give any opinion in this regard.

When Senator Raza Rabbani concluded his talk, Counsel for Pakistan People’s Party Parliamentarian (PPPP) Farooq H. Naek started giving his arguments.

He said in Senate elections the legislators voted as individuals and not as members of a party.

When Justice Yahya Afridi asked him whether PPPP had conveyed to its legislators that they were free to vote for the candidates of their choice, Naek said the party would take a decision in this regard, and that he would only give arguments in the light of the constitution.

Counsel for the PPPP further said that elections for the Senate were held through a secret ballot. “My arguments will be based not on corruption or references to the ‘deep state’, but on laws,” he clarified.

CJP remarked that in democracies, parties as one unit, and not parties’ leaderships, took decisions. “In a democratic setup, the decisions are not imposed,” he said and added that there was a mention of parties in the constitution and not leaders.

When Farooq H. Naek said Senate elections were held as per the constitution, and not under certain laws, and that when elections were held on some specific seats, it was ‘selection’, not election, Justice Ijazul Ahsan asked him not to call election ‘selection’.

“Is every legislator free to vote for the candidate of his or her choice,” the judge asked.

Counsel for the PPPP replied that toeing the party line was not necessary in the case of Senate elections.

CJP Justice Gulzar Ahmed said in India, Senate elections were held via open ballot.

When Justice Ijazul Ahsan inquired whether elections for the Upper House could be held through open ballot if the parliament amended the Election Act, Farooq H. Naek replied it was possible provided the amendment did not go against the spirit of the constitution.

After counsel for the PPPP Farooq H. Naek was done with his arguments, Barrister Zafarullah Khan of the Pakistan Muslim League-Nawaz (PML-N) said that Senate elections could only be held via secret ballot.

When Barrister Zafarullah started giving references of courts’ decisions in other countries, CJP Justice Gulzar Ahmed cut him short by saying that the court was not there to discuss international issues.

“Pakistan is a signatory to several international treaties,” PML-N counsel said.  

“Do international agreements provide for holding Senate elections via secret ballot,” Justice Ijazul Ahsan asked and remarked that the apex court was not in favour of international agreements.

Barrister Zafarullah told the court that the idea of holding elections via secret ballot was discussed at the time of the drafting of the Election Act and that every party, including the PTI, had thrown its weight behind that.

He expressed the fear that if the option of the secret ballot was abolished, it would be a setback for democracy.  

Jahangir Jadoon, representing Jamiat Ulema-e-Islam-Fazl (JUI-F) in the case, said keeping his vote secret was a voter’s right. “Elections for the Upper House of the parliament could not be held through open ballot merely for the sake of few people,” he argued.

The case’s hearing was adjourned till Thursday (February 25).