ISLAMABAD: The Supreme Court noted that in view of its previous judgment, there was no need of the Presidential reference to ascertain apex court’s opinion on the mode of ballot for the Senate election.

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz, and Justice Yahya Afridi, on Thursday, heard the reference on the mode of ballot for Senate elections.

Justice Yahya Afridi said when a two-member bench of the Supreme Court in 2018 held that the elections of the Local Governments are under the constitution then why the federal government had filed a reference seeking the opinion of the apex court under its advisory jurisdiction.

He observed it does not matter whether a judgment is delivered by a two-member, a three-member or a five-member bench. The judgment was of the Supreme Court.

Attorney General for Pakistan (AGP) Khalid Jawed argued that the genesis of the local governments is in Article 140A of Constitution, but their elections are held under detailed provincial laws.

Same is the case of Senate mentioned in Constitution but its elections are held under the Election Act, 2017.

He further contended that during the tenure of dictators the local bodies system was strengthened, but democratic governments the LGs were not given “too much” importance by civilian governments.

The AGP argued that in 2014 a question was raised “whether the Local Government was under the laws or the Constitution.”

He told the court that in 2014 the Balochistan High Court declared that the LG elections are under the constitution.

He further submitted that the SHC taking a leaf out of that judgment also declared that LG elections are under the constitution.

The AGP contended that a three-member bench of the Supreme Court in 2016 passed an order that the LG elections are not under the Constitution, but it did not give reasons.

The AGP further told the court that a two-member bench of the apex court in 2018 delivered a judgment that the local government elections are under the Constitution.

He contended that the two-member judgment was made per incuriam.

The elections for the LGs held in accordance with the provincial laws, because the Supreme Court judgment was delivered after the announcement of the schedule for the LG elections by the Election Commission of Pakistan

He said the federal government has promulgated the Ordinance “in view of that scenario”, adding, “if the Supreme Court is of the opinion that the Senate election is not under Constitution then the upcoming Senate polls will be held as per the Ordinance.”

In case, the Supreme Court rules Senate election is under Constitution then the Ordinance would lapse, he added.

He said even if the Supreme Court judgment comes in favour of the government one day before the election day then the ECP will though hold election through secret ballot but on the back of each ballot vote will write the number.

The counsel for the ECP informed the court that the schedule for Senate election has been announced and the polling will be held on March 3rd. President Dr Arif Alvi on December 23rd through AGP Khalid Jawed Khan filed a reference under Article 186 of Constitution, seeking the apex court’s opinion.

He said the main question is; “Whether the condition of “secret ballot” referred to in Article 226 of the Constitution is applicable only for the elections held “under” the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41 1 Pat 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.”

Copyright Business Recorder, 2021

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