ISLAMABAD: The Supreme Court Tuesday announced the detailed reasons of the opinion on Presidential Reference and held it maintainable, but said the Senate elections are held “under the Constitution” and the law.
President Dr Arif Alvi on December 23, 2020 had filed the reference in the apex court under Article 186 of the Constitution seeking opinion, “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.”
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 heard the reference on Senate election for almost two months.
The bench, on March 1, by a majority of four against one rendered opinion on the Presidential Reference that the Senate elections are held “under the Constitution” and the law.
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Justice Yahya Afridi disagreed with the majority opinion and wrote; “The opinion sought by President in the Reference, is not a question of law within the contemplation of Article 186 of the Constitution accordingly, the same is returned unanswered.”
The SC gave the opinion that “The Elections to the Senate of Pakistan are held “under the Constitution” and the law.”
“It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v. Federation of Pakistan & 2 others (PLD 2012 SC 681).”
“The ECP is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, “no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission” under Part VIII, Chapter 1 of the Constitution.”
Copyright Business Recorder, 2021
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