ISLAMABAD - Chief Justice of Pakistan Justice Gulzar Ahmed Wednesday remarked that the Supreme Court is not a substitute for the Parliament and 1973 Constitution envisages trichotomy of power.

The Chief Justice made these remarks while heading a five-member larger bench of the apex court while hearing the reference regarding holding of the Senate elections either through “secret ballot” or “open ballot”. 

Justice Gulzar remarked, “We are not substitute for the parliament,” and added that there is trichotomy of power envisaged in the constitution. 

He further said, “We are dealing with three situations; first whether Article 226 applies to Senate elections? Whether the Senate elections are to be held under proportional representation by single transferable vote? Thirdly, when the Constitution said all then whether it covers the Senate election as well?”

Salahudin Ahmed, President Sindh High Court Bar Association (SHCBA), said that the questions, what is the secrecy and to what extent it be maintained should be left to the parliament to decide. He stated that one seeks advice when he is uncertain about a course of action. The government has sought a way out in the prevailing political embroilment. He urged the apex court to return the reference without giving any opinion as the question involved is more political than legal.

He argued that the Supreme Court of Pakistan did not give advice in the government reference that whether it is constitutionally valid to recognize Bangladesh or not. Similarly, Indian Supreme Court returned the presidential reference when the Indian government sought its opinion on Babri Mosque.

Salahudin continued, “It will not be the advice [on reference] but the endorsement of the Supreme Court, which is not permissible under Article 186 of Constitution.” He contended that holding of Senate elections through secret or open ballot is the policy matter and government in this matter using the apex court shoulder for political question. He said that this issue should be debated in the Parliament instead of the Supreme Court. “It is not justiceable question for the Supreme Court,” he added.

Senator Raza Rabbani adopted that the apex court should see that the matter before it is under advisory jurisdiction. He said that let the parliament decide whether there should be secret, open or identifiable vote for the Senate election. Parliament should decide whether there should be a constitutional amendment or to amend the law.

He said that if the Supreme Court comes to the conclusion that the Senate elections are not under the constitution then it should keep in mind that the government has already promulgated Ordinance for open ballot. He further said that the life of an Ordinance is 120 days, and asked what will happen if the parliament disapproves the Ordinance. He stated that suppose the Ordinance lapse after 120 day then what would be the fate of the Senate election. The election of the Upper House would also lapse, he asked.

Farooq H Naek, representing Pakistan People’s Party Parliamentarians (PPPP) argued that the voter of Senate election is not representative of the party, but he casts vote as an individual in accordance to his conscience. He stated that if an MNA or MPA does not vote to its party candidate then he is not disqualified. Once he [MP] is in the polling booth he is a free man.

Barrister Zafar Ullah, appearing on behalf of Pakistan Muslim League-Nawaz (PML-N) argued that Article 226 has to be interpreted in light of the historic political evolution.

The counsels of PPP, PPPP, PML-N, JUI-F and President SHCBA have concluded the arguments. Pakistan Bar Council and others parties lawyers will advance arguments today

Salahudin also argued that the Attorney General stance’s that Article 140A is relevant for the instant matter as the Supreme Court had declared that the Local Government elections are under Constitution is not correct. He submitted that the Supreme Court order in MQM petition on Local Government system said that the LG system is under the Constitution has no value because no detailed judgment passed on it. There is no precedent value of the short order in light of the apex court various judgments.

He contended that assuming conflict between Article 51(6) Article 59(2) because in Article 51 minorities and women members are elected through parties’ list, while in Article 59 the election of Senator is through proportional representation by single transferable vote.

Justice Ijaz ul Ahsan questioned that if word ‘election’ is used in Article 51 for the election of women and minorities members then how it is valid because the women and the minorities members are elected through parties lists while no election held for their seats. On the other hand Senate election is held in accordance with the system of proportional representation by means of the single transferable vote. The word ‘vote’ is distinguishable in both the Articles.

Later, the apex court deferred the hearing till today for further proceedings.

APP adds: Chief Justice of Pakistan (CJP) Gulzar Ahmed on Wednesday said that a political party was more important than a party leader in the democracy.

The Chief Justice made these remarks while heading a five-member larger bench that had taken up a Presidential Reference seeking open ballot for the upcoming Senate elections.