Senate polls case: SC asks if any law can be above Constitution

ISLAMABAD: The Supreme Court on Monday questioned the maintainability of the presidential reference, seeking its opinion on holding the upcoming elections for the Upper House of the Parliament through open ballot and show of hand.

The court issued notices to the speakers of national as well as provincial assemblies, Senate chairman and advocate generals of all the provinces in the presidential reference. A five-member larger bench of the apex court headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsen heard the presidential reference.

The court also issued notices to the Election Commission of Pakistan (ECP), advocate general of Islamabad Capital Territory (ICT) besides issuing direction to publish the notices in the newspapers for information of all concerned about the reference. The court appointed Haadi Shakeel from Balochistan as amicus curie (friend of court) to assist it in the matter.

Similarly, the court also directed the attorney general as well as all advocate generals of the provinces including ICT to submit their written synopsis and adjourned the matter for a week. Justice Yahya Afridi directed the attorney general to submit as to whether the reference is maintainable or not.

Addressing the Attorney General, Justice Ijazul Ahsan asked he wanted the court to differentiate between elections under the constitution and the law.

He asked whether the National Assembly elections were not held under the Constitution. The Attorney General responded that the general elections were held under Election Act 2017. Justice Ijazul Ahsan said the constitution mentioned Senate and assembly elections.

He said it was mentioned in the election act that how elections would be held. Local government elections were not mentioned in the constitution, he added.

He said that the Election Act would also be made under the constitution. He questioned if any law could be above the constitution.

Referring to the Charter of Democracy, Justice Ahsan asked the AGP why the government did not evolve a political consensus on the issue.

Justice Ahsan asked whether the method of National Assembly elections could also be changed through a simple law.

The court also ordered for a notice to be published for all those who were interested in joining the court proceedings.

The apex court asked all concerned parties to present a synopsis regarding their submission.

On December 23, the federal government had sought the opinion of Supreme Court of Pakistan on holding the upcoming elections for Senate through open ballot and show of hand.

President Arif Alvi after approving the proposal of the prime minister, had filed a reference in the Supreme Court under Article 186 of the Constitution, seeking its opinion on holding the upcoming Senate elections through open ballot and show of hand.

During the proceedings, Attorney General Khalid Javed submitted that the reference relates to law questions as the president had sought the opinion of the court as to whether the condition of holding a secret ballot referred to in Article 226 of the Constitution is applicable only for the elections held under the Constitution such as the elections to the office of president, speakers and deputy speakers of the Parliament and provincial assemblies and "not to other elections such as the election for the members of Senate" held under the Elections Act 2017 enacted to pursuant to Article 222 read with Entry 41 (1) of the Fourth Schedule to the Constitution "which may be held by way of secret or open ballot" as provided for in the Act.

Justice Ijazul Ahsen asked the attorney general that as per him, there are different procedures for holding elections under the Constitution. “Whether you are asking us to create a distinction under the Constitution as well as the law,” he asked the AG.

The judge recalled that the political parties had developed consensus, resolving that buying of votes needs to be curtailed.

“Why don’t you develop a political consensus in this regard,” Justice Ijazul Ahsen asked the AG.

The AG informed the court that the government had already moved a constitutional amendment bill in the National Assembly in this regard.

Justice Yahya Afridi raised the question of maintainability of the matter. “Why should the Supreme Court intervene into this controversy,” Justice Afridi asked the AG, and directed him to assist the court on the maintainability of the matter.