P L D 2021 Supreme Court 480 (PLP)
Reference No. 1 of 2020
| Citation | P L D 2021 Supreme Court 480 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Gulzar Ahmed, C.J., Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, JJ |
| Parties | Reference No. 1 of 2020 |
| Primary Law | Constitution of Pakistan |
Q1: What are the key laws and sections cited in P L D 2021 Supreme Court 480 (PLP)?
This judgment primarily cites: Constitution of Pakistan as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2021 Supreme Court 480 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Gulzar Ahmed, C.J., Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2021 Supreme Court 480 (PLP) (Reference No. 1 of 2020). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 ref.
- Khalid Jawed Khan, Attorney General for Pakistan, Sohail Mehmood, Addl. A.G.P. and Ayaz Shaukat, D.A.G. (Assisted by Ms. Maryum Rasheed, Advocate) for the Federation (in Reference No. 1/2020) (in C.M.As. Nos.127-128, 170, 989, 1293 of 2021).
- Abdul Latif Yousafzai, Senior Advocate Supreme Court, Muhammad Mushtaq, Addl. Secretary (Legislation) and Muhammad Waqar, D.P.O. (Lit.) for the National Assembly (in C.M.A. No. 278 of 2021).
- Sikandar Sultan Raja, Chief Election Commissioner, Justice (R) Muhammad Iltaf Ibrahim Qureshi, Member (Punjab), Mrs. Justice (R) Irshad Qaiser, Member (KP), Shah Mehmood Jatoi, Member (Balochistan), Nisar Ahmed Durrani, Member (Sindh), Sajeel Shehryar Swati, Advocate Supreme Court, Sana Ullah Zahid, Advocate Supreme Court, L.A., Dr. Akhtar Nazir, Secretary and Muhammad Arshad, DG (Law) for the Election Commission (in C.M.As. Nos. 210, 808, 880, 983, 1010 of 2021).
- Ahmed Awais, A.G., Barrister Qasim Ali Chohan, Addl. A.G. and Ms. Imrana Baloch, Advocate-on-Record for Government of Sindh (in C.M.A. No.95 of 2021).
- Kamran Murtaza, Senior Advocate Supreme Court and Jehangir Khan Jadoon, Advocate Supreme Court for JUI (in C.M.As. Nos. 129 and 541 of 2021)
- Salahuddin Ahmed, Advocate Supreme Court Barrister Omer Soomro, Advocate Supreme Court, Syed Riffaqat Hussain Shah, Advocate-on-Record (Assisted by Ravi Pinjani, Advocate Supreme Court) for SHCBA (in C.M.As. Nos. 297 and 1119 of 2021).
- Hassan Irfan Khan, Advocate Supreme Court (in C.M.As. Nos. 130, 1201 and 1292 of 2021).
- Mian Raza Rabbani, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for PPP (in C.M.As. Nos. 131, 704 and 1217 of 2021).
- Malik Qamar Afzal, Advocate Supreme Court (in C.M.As. Nos. 154 and 1295 of 2021).
- Ishtiaq Ahmed Raja, Advocate Supreme Court for JI (in C.M.A. No.211 of 2021).
- Syed Iqbal Hashmi, Advocate Supreme Court for JI (in C.M.A. No. 231 of 2021).
- Barrister Zafar Ullah, Advocate Supreme Court for PML (N) (in C.M.As. Nos. 784 and 1231 of 2021).
- Mansoor Usman Awan, Advocate Supreme Court for Pakistan Bar Council (in C.M.As. Nos. 807 and 1200 of 2021).
- Farooq H. Naek, Senior Advocate Supreme Court for PPP (P) (in C.M.As. Nos. 872 and 1218 of 2021).
- Khurram Shehzad Chughtai, Advocate High Court, in person for PPP(P) (in C.M.As. Nos. 908, 1008 and 1026-1030 of 2021).
- Azhar Iqbal, Advocate Supreme Court for PPP(P) (in C.M.A. No. 1115 of 2021).
- 2. We have heard learned Attorney General for Pakistan, learned Advocate Generals of all four Provinces and ICT, learned counsel appearing for the National Assembly, the Senate of Pakistan, the Election Commission, Political Parties, Pakistan Bar Council, Sindh High Court Bar Association and the individuals, who have appeared in person.
- (ii) 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 and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681);
- (ii) 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 and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681);
Headnotes / Summary
Arts. 186, 218(3), 220, 222 & 226 & Fourth Sched., Pt. I, Entry 41
Elections Act (XXXIII of 2017), S. 122
Reference by the President under Art. 186 of the Constitution
Senate elections
Voting procedure
Secrecy of ballot
Question asked in the Reference was whether the condition of 'secret ballot' referred to in Art.226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, 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 Art.222 read with Entry 41, Pt. I, Fourth Sched. to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017
[Per Gulzar Ahmed, CJ., Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ [Majority view]: Secrecy of ballot was not absolute and therefore, was not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election
In terms of Art.218(3) of the Constitution it was the duty of the Election Commission to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against
For fulfilling said solemn constitutional duty the Election Commission was required to take all available measures including utilizing technologies]
[Per Yahya Afridi, J. [Minority view]: Opinion being sought in the present Reference was not a question of law within the contemplation of Art.186 of the Constitution, thus, it was to be returned unanswered]
Answer (short opinion) to the Reference provided by the Supreme Court recorded.
Judgment & Decree
YAHYA AFRIDI, J.
For the reasons to be recorded later, with utmost respect, the opinion sought by the Worthy President, Islamic Republic of Pakistan in the instant Reference, is not a question of law within the contemplation of Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, accordingly, the same is returned unanswered. Sd/- Yahya Afridi JUDGE OPINION OF THE COURT For the detailed opinion to be recorded later, by majority of 4 against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is answered as follows: (i) The Elections to the Senate of Pakistan are held "under the Constitution" and the law; (ii) 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 and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681); (iii) The Election Commission of Pakistan 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; (iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution; (v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that "the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election"; (vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is "conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against". Sd/- Gulzar Ahmed C.J. Sd/- Sd/- Mushir Alam, J Umar Ata Bandial, J Sd/- Sd/- Ijaz ul Ahsan, J Yahya Afridi, J MWA/R-2/SC Reference answered.