Where constitution is silent the law will stand applicable therein: CJP


ISLAMABAD, Jan 14 (Online): Chief Justice of Pakistan (CJP) Gulzar Ahmad has remarked where constition is silent the law will be applicable therein.

He further remaked “tell us the procedure for holidng Senate polls is written where in the law. In India Senate polls were made open and its complete procedure was evolved.

He gave these remarks while presiding over a 5-member larger bench of Supreme Court (SC )during the course of hearing of presidnetial reference on holding Senate polls through open ballot papers here Thursday.

Justice Yahya Khan remarked if the matters are between political parties or intra party then court does not interfere therein; But court has been reviewing political matters under its suo moto jurisdiction.

Justice Ijaz ul Ahsan remarked parliament enacts law and SC interprets it. Question is this too how should we interpret. If court interprets then will the interepretation of court be upper most. Government stance is this that minorities polls are not secret then why Senate polls are secret.

Justice Umar Ata Bandial raised question on one occasion government should clarify about Senate polls.Here the matter is of open and secret balloting. We will have to see what is difference between open and secret balloting. It takes one whole day in holding presidential elections rlahter than a few hours.

The Attorney General (AG) arguned federation resorted to SC to solicit opinion. If interpretation is required in the constitution then SC can be approached. Government case is this that article 226 of the constitution be interpreted. The SC is forum for interpreting the constitution and not the parliament. SC maintained in a decsion that the powers to interpret the constitution rest with SC and this is the essence of my arguments. The SC has interpreted political matters on several occasions. The presidential refernce has come before 5-member bench then its reply has to be given by you.

He argued SC Judges take oath under the constitution and despite it they interpret the constitution. This constitution has given powers to SC to interpret the constitution.

AG said the basis of the referene is this that SC should interpret article 226 of the constitution. SC has never declared itself above the constitution. SC is subordinate to the constitution. SC has to interpret the constitution. Court can give decsion on the conflicts between two governments. SC hears appeal agaisnt the high court.

Justice Ijaz ul Ahsan remarked parliament enacts law and judiciary interprets it.

AG said in addition to appeallate forum, SC is constitutional court too

Justice Yahya Afridi remarked there is no other appeallate forum after SC. The court will have to demonstrate utmost care.

AG said the court is authorised to interpret article 226 in any way. The election of president, Prime Miniser and speaker can not be challenged in any tribunal. Under atricle 225 the general elections can be channgled in a tribunal. The composition of Senate has been laid down in the constitution. National Assembly polls are held directly and Senate polls are held indirect and not direct. Senate polls are held under the law rather than constitution. Therefore, the government has come in SC so that it could solicit opinion from SC.

CJP raised the question tell us the general elections consist of how many phases.

AG told the court first of all demarcation of constituencies, voters lists and appointment of returning officer are made. In the second phase the election staff is appointed and shcedule is issued. The national assembly polls are held in a day but electoral process is too long. In Senate election returning officer and presiding officers are appointed first of all . The court should maintain that Senate polls take place under the law. Law will be amended. If court declares Senate election under the constituition then complications will arise. The election on reserved seats in Senate will become impossible this way. If article 226 is applied then representation of reserved seats will stand ruled out In open balloting the voters will cast votes like they had cast earlier. Voters name will be written on the back side of ballot paper. The entire procedure about presidential election is laid down in the constitution but not of Senate.

The hearing of the case was adjourned till next Monday.