ISLAMABAD: The Supreme Court’s opinion on the presidential reference about the mode of the Senate polls has divided legal opinion and reaffirmed the powers of the Election Commission of Pakistan (ECP).
The opinion has quoted constitutional provisions that make it incumbent upon the ECP to ensure the fairness of elections. It is evident from the court order that it is the ECP which is empowered by the Constitution and law to make sure that the electoral process is honest and fair. The opinion cited constitutional articles 218(3), 220 and 222 in its order, that deal with the duties, responsibilities and powers of the ECP.
The order also referred to a case of 1967 about the secrecy of the ballot. It said that the Supreme Court has already answered this question in a five-member bench judgment 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”.
The Parliamentary Institute of Legislative Development and Transparency (Pildat) President Ahmed Bilal Mehboob tweeted that the opinion relies on the Supreme Court judgment of 1967 when the Constitution (1962) was different, the election law (Electoral College Act, 1964) was different and the context of the case was totally different.
“Respectfully, the reference to this case has rendered the opinion totally confusing.” He posted that the reference to the 1967 judgment in today’s opinion is irrelevant. That case was about the PO illegally marking ballots.
The Supreme Court had held that PO was wrong but the ballots should still be counted as it was not the candidate’s fault. “How is this case relevant to the reference? Interpreting the Supreme Court opinion to mean ‘identifiable ballots’ is too much of a wishful thinking!”
Prominent lawyer Salman Akram Raja tweeted that we await the detailed judgment to see what has been said about the extent of the secrecy of the ballot by the Supreme Court. “So grateful, the apex court has upheld the Constitution. It is for the parliament to amend the Constitution and remove secrecy of the ballot, not for the courts to rewrite. The primacy and authority of the ECP must be upheld and the court has done that today. Much respect.”
Legal Advisor, South Asia, International Commission of Jurists, Reema Omer, in a series of tweets commented on the court opinion. “The presidential ordinance for open ballot was conditional upon the court advice that Senate elections are not under the Constitution. The ordinance therefore is of no effect as the court has rejected the government's novel and rather absurd interpretation of Article 226,” she posted.
She tweeted that “an amazing spin is being given to the court opinion. The question in the presidential reference was whether Senate elections are under the Constitution and the court response is that these polls are ‘under the Constitution’ and the law. This means the elections are by secret ballot under Art 226 -- not an interpretation the government wanted.”
Reema Omer further tweeted that the Supreme Court has gone beyond the reference and has advised the ECP to ensure the fairness of the Senate elections including through technology and has stated that the secrecy of the vote isn’t absolute “This is incorrectly being interpreted to mean that the court has ‘directed’ the ECP to hold elections through identifiable ballot,” she posted.
She said not only does this interpretation of the court’s opinion seem fanciful, it is also alarming: “Is the government really suggesting that the ECP can change the meaning of ‘secret ballot’ through amending its rules alone? Can the ECP do this for general elections as well, where you and I vote?”
The legal advisor said that the government started, rightly, seeking reform through a constitutional amendment. It then wanted to change the Elections Act, 2017 through the ordinance. “Now, the government is arguing ballots can be identifiable merely through the ECP redefining secrecy in rules from the constitutional amendment to changing rules -- what a fall!”
Reema Omer said that the court's reliance on the 1967 to argue secrecy is not absolute (which the government is arguing is a direction to the ECP to make the secret ballot identifiable) is curious, to say the least.
“The 1967 verdict says voters shouldn’t be disenfranchised because presiding officers (POs) didn’t maintain secrecy. After votes are cast, they shouldn’t be discarded even if secrecy is tampered with due to no fault of the voter. How can this be used to support votes being made identifiable deliberately before they are cast (yet still be called ‘secret’ for purposes of the constitution)?”
The SC opinion noted that it is the constitutional duty of the ECP to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.
On this point, the Supreme Court had given a judgment in 2012 as well. Secondly, the opinion pointed out that the Constitution categorically provides that no such law shall have the effect of taking away or abridging any of the powers of the Chief Election Commissioner (CEC) or the ECP.
Thirdly, all the executive authorities in the federal and provincial governments are obliged to assist the CEC and ECP in discharge of his or their functions, as provided for in the Constitution.
Fourthly, in terms of constitutional articles and law provisions, the ECP is required to take all available measures including utilising 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. On this point, Ahmed Bilal Mehboob and Reema Omer have a different view.
