No one can stop govt from issuing ordinance: Chief Justice

ISLAMABAD – The Supreme Court of Pakistan on Monday noted that the Ordinance regarding Senate election is not presumptive but conditional legislation.

 A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz, and Justice Yahya Afridi noted this while hearing the reference regarding holding of the Senate election either through “secret ballot” or “open ballot”.

During the hearing, Justice Ijaz ul Ahsan said that the provision of the Ordinance is very clear that if the Supreme Court comes to the conclusion yes the Senate Election is under Constitution then it will be operative, but if it decides it is not then Ordinance will not automatically operate.

In the beginning of the hearing, Kamran Murtaza counsel for Jamiat Ulema-e-Islam (JUI) argued through video-link from Quetta that the federal government on February 6 issued Ordinance as a pre-emptive attempt what the court is going to do. Justice Ijaz questioned that how it is pre-emptive. He noted that the Ordinance itself says it is subject to the apex court order.

Murtaza contended that first time this has happened that the matter is pending before the apex court while the government has promulgated ordinance on it. He added, “Till date I have not seen such legislation.” He said that the government should have respect for the Supreme Court. He told that an application has been filed against the ordinance.

The Chief Justice noted that the ordinance has not been challenged before the apex court yet. He said, “We would listen to them [JUI and Raza Rabbani]” and asked the office to register the application. Justice Gulzar said that they would issue notice on application. He, however, did not pass a formal order in this regard.

If court opinion differs from govt’s position, reference would be abolished; It seems govt issued ordinance over speculations, says Justice Gulzar

Chief Justice Gulzar Ahmed remarked that the ordinance was subject to judicial opinion. It seemed that the government issued the ordinance over speculations, he added.

He said no one could stop the government from issuing ordinances and if the court opinion differs from the government’s position, the reference would be abolished.

He said the court would have annulled the Presidential Ordinance on Senate elections if it was not conditional.

The Chief Justice remarked that the petition regarding the ordinance would also be heard along with the presidential reference case.

The court also issued notice to the Attorney General on a petition against the Presidential Ordinance.

PPP Senator Raza Rabbani stated that bizarre circumstances have been created as the government issued the Ordinance when the reference is pending before the court.

He said that President Dr Arif Alvi on February 6 enacted Elections (Amendment) Ordinance, 2021 Ordinance for holding Senate election through open ballot. Its proviso said; “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 members of 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.

The court asked from Raza Rabbani that you wanted to say that they (government) entered into the domain of speculation. The CJ said that do not know why they did it [issued Ordinance] and added, “No one can stop them from issuing the ordinance.” Raza Rabbani said that the ordinance would give rise to multiple litigations.

Justice Ijaz said that the ordinance is subject to the Supreme Court’s decision. It is not presumptive. He also said, “If we hold that the Senate election is not under Article 226 of the Constitution then it would lose it efficacy.”

Justice Umar Ata Bandial observed that the Upper House of the Parliament is the House of the elders. They (Senators) control the legislation, they are mature and do not squabble like the members of the Lower House. He noted that in view of Thursday (February 4) squabble in Lower House the government recalled the constitutional amendment bill.

The Attorney General argued that people with bags full of money lurking in the capitals to spoil the Senate election in sunlight. He said that if a person spends millions of money to become Senator then what would he do for Pakistan. He will serve his own interest, he added. He said that the Supreme Court had gone out of its way to support fair, just and honest election.

Then, the Chief Justice asked from Senator Rabbani that why they oppose the open ballot. Raza Rabbani said that all the political parties are not opposing the process of transparency and fair election. He, however, contended that the question before the Court is whether the Senate election be held through open or secret ballot.

The bench noted that the political parties have not opposed the reference. Raza Rabbani said that the Pakistan Peoples’ Party is before the Court through Sindh provincial government.

Justice Bandial questioned that why the Article 226 of Constitution is specific about secret ballot. He said that the exception in it will come later on. The judge remarked, “We have so many very good politicians, therefore it is not appropriate to paint all with the same brush.”

Justice Bandial further asked, “When the constitution says Senate election be conducted though secret ballot then why it is objected.” The Chief Justice ordered attorney general to apprise about the original provisions of Constitution related to the Senate election.

Salahuddin Ahmed Advocate contended that the Supreme Court is hearing the matter under advisory jurisdiction. He argued that the proceeding against the ordinance can be taken under Article 184(3) of Constitution. The ordinance says the matter before the apex court is inter-connected.

The Chief Justice remarked, “We are not bothered about it.” He added that after 11th February it would be affected if the court decision is in favour of the reference.

The AGP said that if the opinion is rendered after the 11th then it would be a mere academic exercise. He said that the Ordinance is not attack on the parliament or judiciary. He also said that the opposition is criticising without reading Section 122 of Election Act, 2017. Later, the apex court deferred the hearing till Wednesday in this matter.