The Supreme Court on Monday announced its opinion on the presidential reference regarding open balloting in Senate elections, maintaining that the March 3 polls will be held through secret ballot, according to Article 226 of the Constitution.
The 4-1 majority opinion was announced by a five-member larger bench of the Supreme Court, headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi.
Justice Afridi disagreed with the majority opinion, while observing that ‘the opinion sought by President of 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’. Therefore, he abstained from giving an opinion on the reference.
The eight-page short opinion issued by the Supreme Court stated that the Senate elections will be held under Article 226 of the constitution, and that the Election Commission of Pakistan (ECP) can use the latest technology to hold transparent elections. “The Election Commission is required to take all available measures including utilising technologies to fulfill 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 under powers granted to it according to Article 218 of the Constitution,” the court opined, and emphasised that all institutions were bound to follow the ECP.
The bench said that the secrecy of the ballot papers, however, was ‘not final’, quoting a decision by the top court on the same in 1967 (Niaz Ahmed case). It held that the secrecy of the ballot is not ‘absolute’ and can be diluted by practical considerations, especially those that relate to the ECP exercising its mandate to conduct free and fair elections that are devoid of any corrupt practices. The court said that it is up to the ECP to decide to which extent the voting should remain secret. “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,” it said. The Supreme Court also made it clear that “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.”
The opinion also highlighted that it is the job of Parliament “to legislate […] on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections.” However, it made clear that such legislation should not take away from or limit the powers of the chief election commission or the ECP.
The court had reserved its opinion on the matter last week after the parties had concluded their arguments and Attorney General Khalid Javed had issued a rebuttal.
Meanwhile, Attorney General Khalid Javed Khan said the ECP was ‘constitutionally bound to follow the opinion of [the] SC and implement it for the Senate election scheduled for March 3’. In a statement, he said the opinion of the apex court was ‘binding’ and ignoring or violating it amounts to contempt and misconduct.
The attorney general said the court was of the view that secrecy in Senate elections was not absolute or eternal, thus it was up to the ECP to select the method to be used for the upcoming polls such as printing a bar code or serial number on the ballot paper. “ECP is bound to print such identifiable or traceable ballot papers under Section 122(5) of the Election Act, 2017 […] No change in law is required to give effect to SC opinion as 122(5) is existing law.”
He said if there was any evidence to suggest corruption or rigging in the Senate elections after they were over, then any party head or citizen could “lodge [a] complaint with available material or evidence against any voting MPA/MNA with ECP”. “ECP is bound to investigate and trace the ballot to see whether any corrupt practice occurred,” said AG Khan, adding if it did not, the complainant could go to court or tribunal to take up the issue.
