While raising objection over maintainability of the presidential reference for open ballot in upcoming Senate election before the Supreme Court, Advocate General Sindh Salman Talibuddin contended that any affirmative response of the top court in the matter would be tantamount to constitutional amendment.
Appearing before a five-member larger bench of the Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi on Thursday Advocate General (AG) Talibuddin argued saying sanctity of vote cannot be trampled through open ballot in Senate election.
During the course of proceedings, the Election Commission of Pakistan submitted copies of the instructions to voters in Senate elections to the bench whereas AG Punjab said that the institutions are required to be strengthened instead of individuals. He argued that keeping everything secret is not essential for transparency.
Affirmative response of the court over presidential reference would be tantamount to constitutional amendment, AG Sindh
Responding to the question of a member of the bench Justice Ata Bandial whether during indirect elections members bound to follow the party discipline the AG Punjab said there are instances of illegal grabbing of the mandate in the past. He further said that Asif Zardari has recently stated about winning 10 seats to which Chief Justice Gulzar Ahmed said the law officer should deliver arguments about law rather than political statements.
AG Sindh contended that open ballot procedure for the election in the Senate can only be changed through a constitutional amendment which he said was the sole privilege of the Parliament.
Terming allegations of corruption in the Senate election as hearsay the AG Sindh submitted everyone is talking about horse-trading but no one has the evidence in this regard saying secrecy in the polls is absolute in accordance with Article 226 of the Constitution.
Upon which, Justice Umar Ata Bandial said that the best evidence of corruption is a traceable ballot of a voter, adding that if the Election Commission is unable to access the paper ballot, then Article 225 of the Constitution stands redundant. Justice Bandial further remarked if prima facie, there is a material of corruption, then a tribunal can order an examination of the ballot.
Responding to the court query, what will happen if Senate elections are challenged at any time the AG Sindh submitted the learned court should stay away from political questions to which Chief Justice Gulzar Ahmed termed the Constitution as a political instrument saying the court is doing political work while interpreting the Constitution.
Revealing the Charter of Democracy Chief Justice Gulzar Ahmed remarked he can’t say whether horse-trading will end with an open ballot or not saying but it is unfortunate that PPP and PML-N have deviated from their own agreement.
A member of the bench Justice Ijazul Ahsan observed that removing the secrecy of vote does not mean that corruption has taken place, adding the Election Commission should have a mandate to check the horse-trading during voting. The judge remarked that one cannot shut the door to the opening of ballots.
AG Sindh submitted that political party leaders can ask from voters upon voting against the party rules to which Justice Ahsan raised a question whether there be a complete exemption if the criminal element is exposed during voting. Justice Ijazul Ahsan further observed whether the door of investigation closed to investigate transactions during voting.
The Chief Justice observed if there is evidence of money transactions during voting, then how will the Election Commission investigate to which the AG Sindh took a stance where all the procedure to address such situations has been mentioned in the Election Act.
Endorsing the position of the Election Commission in the matter in hand, AG Sindh contended that the federal government wish could not be fulfilled without amending Article 226 of the Constitution. On this the Chief Justice said thank you please sit down, however, the AG Sindh said that his arguments have not been completed yet. But the court directed Advocate General Balochistan to deliver arguments who adopted the Attorney General for Pakistan.
Later, the bench said that during the next date the court will hear the matter for one hour and adjourned the matter for Friday.
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