SC seeks AGs, speakers’ input on Senate polls

Presidential reference requests top court for guidance on holding elections via open ballot

Hasnaat Malik January 04, 2021


The Supreme Court (SC) on Monday issued notices to all advocate generals and speakers of national and provincial assemblies seeking their input on the presidential reference filed for holding Senate elections through open ballot.

The presidential reference was filed by Attorney General for Pakistan (AGP) Khalid Javed Khan, under Article 186 of the Constitution, invoking the court’s advisory jurisdiction.

The reference sought an interpretation of Article 226 that states that all elections under the Constitution, other than those of the prime minister and chief ministers, shall be held through secret ballots.

During the proceedings, a five-judge larger bench, headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed and comprising justices Mushir Alam, Umar Ata Bandial, Ijazul Ahsan and Yahya Afridi, also ordered publishing a notice for all those who were interested in joining the proceedings.

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

Justice Afridi asked AGP Khan to satisfy the court regarding the maintainability of the presidential reference. “Why should the SC jump into the controversy?” he asked.

Referring to the Charter of Democracy, in which political parties had agreed to end floor-crossing and corruption, Justice Ahsan asked the AGP why the government does not evolve a political consensus on the issue.

Justice Ahsan asked the AGP if he wanted to know whether Senate election should be held under the Constitution or law.

He inquired whether the method of National Assembly elections could also be changed through a simple law.

The hearing was adjourned till January 11.

The reference

According to Article 186 of the Constitution, “If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

“The Supreme Court shall consider a question so referred and report its opinion on the question to the President.”

The presidential reference asks if the condition of ‘secret ballot’ referred to in Article 226, is applicable only to the polls held “under” the Constitution – such as the election to the office of the president, the National Assembly speaker and deputy speaker, the Senate chairman and deputy chairman and speakers and deputy speakers of the provincial assemblies – and not to “other elections”.

It described “other elections” as the election for the members of the Senate “held under the Elections Act 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule, which may be held by way of secret or open ballot, as may be provided for in the Election Act 2017.”

The reference said this question of public importance had arisen in the context of “the malaise of vote buying” that has damaged the purity of elections. Every Senate election since 1985 had generated a debate followed by the commitment to reform and promise of open ballot.


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