Presidential reference on Senate polls: Laws are to apply when constitution is quiet, says Supreme Court

ISLAMABAD: The Supreme Court Thursday observed that if the Constitution does not mention the procedure to hold Senate elections, then the law will apply there.

The federal government told the apex court that being a constitutional court it was its obligation to interpret the Constitution. A five-member larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Yahya Afridi and Justice Ijazul Ahsen, resumed hearing in the presidential reference.

The chief justice asked as to where the procedure of Senate elections is written. He observed that India has described the full method of open balloting of Senate elections. The judges also inquired about difference between secret and open ballot.

Continuing his arguments, Attorney General Khalid Javed begun with the answers to the question posed on Wednesday by Justice Yahya Afridi that being a political matter in nature why the government did not approach the parliament. Khalid Javed submitted that they have approached the apex court to interpret the Article 226 of the Constitution, adding that it was the obligation of the court to do so as it had in many cases.

“For interpretation of the Constitution, Supreme Court is the appropriate forum, not the parliament,” the AG contended, adding that the apex court can exercise its jurisdiction in three different ways.

He submitted that it can decide the matter pertaining to disputes between two governments besides exercising its jurisdiction under Article 184(3) of the Constitution as well as hearing appeals against the high courts.

Justice Ijazul Ahsen observed that the parliament makes legislation, while the Supreme Court interprets the Constitution, but the question arises as to how the court makes interpretation in the matter in hand. The AG replied that the apex court in one of its judgments had held that it has the jurisdiction to interpret the Constitution and this is the main crux of his argument.

Khalid Javed further submitted that in every country, the Supreme Court is being regarded as the constitutional court for the interpretation of matters pertaining to constitution. “Our Supreme Court is also a constitutional court,” the AG contended, adding that countries like US, India, Bangladesh as well as Sri Lanka and others interpret the Constitution in matters relating to Constitution and politics.

“On many occasions, the Supreme Court had interpreted the matters related to politics,” the attorney general submitted. Justice Yahya Afridi observed that the court does not interfere in the matters related to intra-party as well as matters between the political parties. The judge said that the apex court had examined political matters while exercising its original jurisdiction of suo motu enshrined in Article 184(3) of the Constitution.

Justice Afridi also raised a question whether the court interpretation will get precedence over the Parliament’s interpretation. Article 184 relates to original jurisdiction of the Supreme Court, while Clause 3 states that without prejudice the Supreme Court shall if it considers that the a question of public importance with reference to the enforcement of any of the fundamental rights. The attorney general submitted that the Supreme Court has often referred back to Parliament matters relating to politics.

“Although the Constitution has empowered the apex court to examine such nature of matters but the court had send back these matters to Parliament”, the attorney general submitted. Justice Ijazul Ahsen asked the attorney general was he presenting two viewpoints pertaining to interpretation of the court in matters relating to Constitution and politics. He said if the court makes an interpretation of a particular issue than whether its interpretation will have its superiority.

The AG replied that the court itself had held that it has the jurisdiction to interpret the laws and Constitution. “Although the court had referred back many matters to Parliament, but it is adhering to its precedents as well,” he contended.

The AG recalled that the apex court in Hasba Bill case in 2005 had already made an interpretation of Article 186 of the Constitution. He submitted that the five-member bench is now hearing the presidential reference filed under Article 186 of the Constitution seeking its opinion on holding of upcoming Senate elections through open ballot and it is the apex court to give its opinion.

At the outset of hearing, Justice Ijazul Ahsen observed that many provisions for Senate elections are provided in the Elections Act, 2017. The AG replied in affirmative. Justice Umar Ata Bandial observed that there are different forums of proportional representation, adding that it is settled through law, not under the Constitution

The chief justice asked the AG about stages of holding general elections, to which the AG replied that it is very important question, and informed the court about it. In the first stage, he submitted that delimitation of constituencies for national and provincial assemblies is held, and electoral rolls are organised. He said that chapter 5 of the Act relates to conduct of elections to assemblies, appointment of returning officers, polling officers, and notification of election programmes including polling stations.

Similarly, the AG submitted that chapter 7 of the Elections Act, 2017 provides full procedure for the Senate elections, adding that only the names of voters will be written on the back of the ballot paper in the open ballot, the purpose of which is to find out which member of the assembly voted for which candidate. The court adjourned the hearing until next Monday.