Senate elections: Govt, opposition claim victory

ISLAMABAD: A five-member larger bench of the Supreme Court (SC) Monday gave its opinion on the presidential reference regarding Senate elections, saying that polls would be held through the secret ballot, according to Article 226 of the Constitution.

The 4-1 majority opinion was announced by the apex court bench, headed by Chief Justice Gulzar Ahmed and including Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi.

The bench ruled that elections to Senate were held under the Constitution and the law and secrecy was not absolute. It directed the Election Commission of Pakistan (ECP) to ensure that the election was conducted honestly, justly, fairly and in accordance with the law and the corrupt practices were guarded against.

The court, on Feb 25, reserved its opinion with the observation that it had nothing to do with the politics but to interpret the provisions of the Constitution. “For the detailed opinion, to be recorded later, by majority of 4 against 1 (Yahya Afridi, J.) dissenting, the Reference is answered,” the court announced its opinion.

The court held that it is the duty of the ECP 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 the court has given successive judgments and the most exhaustive being Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others vs. Federation of Pakistan & 2 others (PLD 2012 SC 681).

Referring to the matter of secrecy of the ballot paper, the court 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 tampered by practical considerations necessitated by the processes of election.

“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 & 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 tampered by practical considerations, necessitated by the processes of election”, the court held.

The court held that the ECP 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.

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 ECP in discharge of his or their functions, as provided for in Article 218(3) of the Constitution,” the court ruled in its opinion.

Furthermore, the court ruled that 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 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.”

Meanwhile, Attorney General Khalid Javed, who had tested COVID-19 positive the other day, also issued statement after the court announced its opinion on the reference.

He said the ECP is constitutionally bound to follow the SC opinion and implement it for the Senate election, scheduled for March 3, 2021.

“The opinion of SC is binding and ignoring or violating order of the SC amounts to contempt and misconduct,” AG said adding that it is for the ECP to use technology and choose the method like Bar Code or Serial Number, etc., on ballot papers as secrecy has been held not to be absolute and eternal.

He said the polls should be by secret ballot, but secrecy may end there. Khalid Javed said that the ECP was bound to print such identifiable or traceable ballot papers under Section 122(5) of the Election Act, 2017, which empowers the ECP to print ballot papers as it may prescribe.

No change in law is required to give effect to the SC opinion as 122(5) is existing law,” the AG said adding that that has to be done by the ECP in the light of the SC opinion, delivered on Monday.

He said if after election, there was any material or evidence suggesting corrupt practice, not only the party head but any citizen could lodge complaint with available material or evidence against any voting MPA/MNA with the ECP and if there was prima facie case, the ECP was bound to investigate and trace the ballot to see whether any corrupt practice occurred.

“If ECP does not, the complainant can go to the court or tribunal to see if vote was actuated by corrupt practice,” Khalid Javed said.

Reacting to opinion of the court, President Supreme Court Bar Association (SCBA) Latif Afridi said that they had no knowledge about such a technology whereby the Election Commission fulfil the solemn constitutional duty to ensure that the election was “conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against”.

Talking to the media outside the Supreme Court, the SCBA president said the significance of the ballot papers was its secrecy, hence the voter’s secrecy must be maintained.

“A vote will not be a vote if it loses its secrecy,” Latif Afridi said adding that the Election Commission had already told the court that elections to the upper house of the Parliament comes under the Constitution hence for the purpose of holding of the said election through open ballot, Article 226 of the Constitution was required to be amended.

Last year on Dec 23, President Dr Arif Alvi, after approving the proposal of Prime Minister of Pakistan, had filed a Reference in the Supreme Court of Pakistan. The presidential reference sought the opinion of the court on amending Section (6) 122 of the Election Act 2017 without amending the Constitution.