ISLAMABAD: The Attorney General for Pakistan (AGP) was asked to satisfy how the elections of speaker, deputy speaker of the national and provincial assemblies, and the chairman and the deputy chairman of the Senate are in accordance with constitution.
A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Yahya Afridi on Monday heard the reference regarding holding of Senate election either through “secret ballot” or “open ballot”.
AGP Khalid Jawed Khan submitted that the election for the president is held under Article 41(3) read with Clause 12 of the Second Schedule to the Constitution which specifically provides for secret ballot.
He said elections of speakers and deputy speakers of the national and provincial assemblies are held under Articles 53 and 108, and the chairman and the deputy chairman of the Senate under Article 60, respectively.
He said the methodology for holding their elections is given in the Assemblies Rules, which are outside the Constitution.
Justice Ijaz asked the AGP that he has to address how the elections of speakers and deputy speakers of National and Provincial Assemblies and the Senate Chairman and deputy chairman are under the constitution.
The chief justice said: “We have to consider the question of holding election under constitution in view of the whole scheme of the constitution and not in bits and pieces.”
The AGP contended that the elections of the prime minister and chief ministers are conducted under Articles 91(3) and 130(3).
However, elections for these offices were excluded by Article 226 after the passage of 18th amendment, and the present position is the same as it existed in 1973.
Pakistan People’s Party Senator Raza Rabbani, Advocate Kamran Murtaza on behalf of Jamiat Ulema-e-Islam Pakistan, lawyers Qamar Afzal and Hassan Irfan, in individual capacity, also have filed the submissions in relation to the reference.
Advocate General for Sindh Salman Talibud Din sought one week for submitting a reply on the reference.
Senator Rabbani, the JUI, and advocate Hassan Irfan have opposed the reference.
The AGP contended that unlike cases falling under Article 184(3) in the original jurisdiction of this Court, the question of maintainability or jurisdiction does not strictly arise under Article 186.
The reference proceedings under Article 186 of the Constitution were last considered in detail by a 10-member bench of the Supreme Court following that Hisba Bill passed by provincial assembly. The judgments as well as opinions rendered by the Court, he added.
He submitted that according to the principles settled in that reference (the Hisba Bill), the opinion of the apex court on a reference filed by the president under Article 186 has a binding effect.
Justice Ijazul Ahsan inquired about the provision for an MPA, who wants to contest the Senate elections independently.
He asked: “Does the law provide that an independent can contest the Senate polls?”
The AGP replied that there is no bar in that regard.
The AGP said if Article 226 is construed to include all elections referred to in the Constitution, then a complication would arise.
Copyright Business Recorder, 2021
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