2021 PLD 825 SUPREME-COURT

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VS arts. 48(1) & 186---advisory jurisdiction of the Supreme Court---Principles relating to the nature and scope of advisory jurisdiction of the Supreme Court under art. 186 of the Constitution stated. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 59(1), 59(2), 186 & 226---Elections act (XXXIII of 2017), S. 122(6)---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, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections act, 2017---Whether the Reference lacked clarity and precision and whether it raised a political question, the determination whereof was to be left to the Parliament---Held, that the referred question failed to reveal, in what respect, with what object, or to avoid what controversy, guidance of the Court had been sought in its 'advisory jurisdiction'---In fact, it appeared to be a general question in abstract (lacking clarity and precision), and required one to guess the true purport thereof - the election of Senate---articulation of the question could have been made simpler to avoid ambiguity and vagueness---Furthermore in present Reference the question referred had political implications---With a clear split between the ruling political parties and major opposition political parties (on how to resolve the issue of secrecy of ballot during the Senate elections), and the charged political atmosphere, the resolution of the question through intervention of the Court, and that too in its advisory jurisdiction, would be, inappropriate and invite untoward criticism on the Court---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. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS art. 186---advisory jurisdiction of the Supreme Court---Reference by the President to the Supreme Court under art. 186 of the Constitution - Pre-requisites and scope---Reading of art. 186 of the Constitution highlighted three essentials: first, the President had the power to refer a 'question of law' to the Supreme Court for consideration and reporting its opinion thereon; second, the President must consider the said question to be of 'public importance'; and lastly, the Supreme Court was to consider and report its opinion on the referred 'question of law' of 'public importance'---authority to determine, whether a particular 'question' was of 'public importance' was conferred by the Constitution on the President, but the determination, as to whether or not the same was a 'question of law', did not fall within his exclusive domain - but remained with the Supreme Court, and that too, as a jurisdictional fact, before the Supreme Court ventured to render its opinion on the question referred to it in the Reference---Thus, once the Court found that the 'question' referred to it was a 'question of law', only then would the Supreme Court consider the same, and report its opinion thereon to the President. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS Constitution was an organic whole---No provision of the Constitution could be interpreted in isolation, rather the Constitution had to be read organically and holistically, and Articles and Clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the readers because the meaning of the Constitution had to be gathered from the Constitution as an integrated whole, not as a mechanical deduction but based on reasons. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 51 & 59---Elections act (XXXIII of 2017), S. 122---Elections for National assembly and Senate---Scope---Elections to both the Houses (of Parliament) were provided by the Constitution itself---Such elections could not be taken out from the purview of the Constitution on basis of an interpretation to the effect that were held under the Elections act, 2017---Such interpretation would not be harmonious and holistic construction of the Constitution. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS Settled principle of interpretation of the constitutional provisions was that there was a possibility of restricting the meaning of certain words in the Constitution, to the situation provided by the Constitution itself---No different meaning could be assigned to specific words in a given provision of the Constitution for the reason that in other places the Constitution had used different terminologies---Even though there may be different terminologies used in the Constitution but until any nexus was found by those other terminologies to the terminology used in a specific provision of the Constitution, the very specific provision had to be given plain meaning to it without reading into it. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 184, 185, 186, 187 & 188---'adjudicatory jurisdiction' and 'advisory jurisdiction' of the Supreme Court---Political questions---If the determination of any question raised before the Supreme Court required interpretation of any provision of the Constitution, the Court was obliged to 'adjudicate' upon the same, notwithstanding that the question raised had some political overtones---Supreme Court should not decline to adjudicate a case, or to answer a question of law involving interpretation of some provisions of the law or the Constitution raised therein, in its 'adjudicatory jurisdiction' merely because the decision of the case or the determination of the question would have some political repercussions---But the position would be different, when a 'question of law' that had, political implication was referred to the Supreme Court for its 'opinion', in its 'advisory jurisdiction' under art. 186 of the Constitution---In such jurisdiction, the Court had the discretion not to answer the question; the only restraint was that, like all other discretions, the Court was to exercise this discretion judiciously for valid reasons and not arbitrarily---Involvement of the Court in political disputes in its advisory jurisdiction would also have, the effect of compromising the dignity and honour of the apex Court of the country. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts.186(2) & 187(1)---advisory jurisdiction of the Supreme Court---Scope---Directions, issuance of---Power of issuing such directions was not available to the Supreme Court, while answering a 'question of law' referred to it by the President under art. 186 of the Constitution---'advisory jurisdiction' of the Court, under clause (2) of art. 186 of the Constitution, was restricted to consider the question referred and report its opinion only on that question to the President---ancillary and inherent powers that the Court had under art. 187(1) of the Constitution to issue such directions, orders or decrees as may be necessary for doing 'complete justice' in any case or matter pending before it, were not available to the Court while exercising 'advisory jurisdiction. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 59(1), 59(2), 186 & 226---Elections act (XXXIII of 2017), S. 122(6)---Reference by the President under art. 186 of the Constitution---Maintainability---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, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections act, 2017---Whether the question asked in the Reference was a political question and hence the Reference was not maintainable---Held, that the question that had been posed before the Court by the present Reference was more of interpretation of the Constitutional provisions, particularly, art. 226 of the Constitution and in all circumstances, it was the exclusive domain of the superior Courts especially the Supreme Court, to interpret the Constitutional provisions---Present Reference and the question posed before the Court was within the domain of art. 186 of the Constitution---Reference was held to be maintainable accordingly. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 213(1), 218(3) & 222---Election Commission and Election Commissioner, powers of---Scope---Election Commissioner or the Election Commission had all powers vested in them to ensure that the elections were organized and conducted honestly, justly, fairly and in accordance with law and corrupt practices were guarded against---Furthermore, in order to achieve the mandate of the Election Commission in terms of art. 218(3) read with art. 220 and other enabling provisions of the Constitution and the law, the Election Commission was required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against. Citation Name: 2021 PLD 825 SUPREME-COURTBookmark this Case VS arts. 59(1), 59(2), 186 & 226---Elections act (XXXIII of 2017), Ss. 81 & 122(6)---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, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections act, 2017---Held, that the election to the Senate were elections under the Constitution and they were to be held by secret ballot---However, the concept of secrecy of ballot was not absolute and need not be implemented in the ideal or absolute sense but had to be tempered by practical considerations necessitated by the processes of election.

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