Senate elections to be held through secret ballot under Article 226: SC

Justice Yahya Afridi dissented with the majority opinion

ISLAMABAD:

While declaring that secrecy of the ballot is not absolute, the apex court has thrown the ball in the Election Commission of Pakistan’s (ECP) court, asking it to take all available measures -- including the use of latest technology -- to guard against corrupt practices during the Senate elections.

“In order to achieve the mandate of the ECP in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and law, the ECP is required to take all available measures including utilising technologies to fulfil the solemn constitutional duty…

“[This solemn duty is about ensuring] that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against,” said a five-judge larger bench while giving its opinion on a presidential reference.

The bench -- headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi -- issued the short opinion on Monday. The detailed opinion will be issued later.

Through the reference filed in December 2020, the federal government had asked the apex court whether the Senate elections are held “under the Constitution” or under the Election Act 2017.

According to most legal experts, the phrase “under the Constitution” refers to Article 226 of the Constitution which says all elections under the Constitution, other than those of the prime minister and the chief minister, shall be held thourgh secret ballot.

Presidential reference

The majority opinion said the SC has already answered the question with regard to secrecy of the ballot in a judgment reported as Niaz Ahmad vs Azizuddin & others.

“[The said order said] 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 ECP and the opposition parties had taken the contrary view by saying that secrecy is absolute. 

“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 this court has given successive judgments and the most exhaustive being given in Workers’ Party Pakistan 2012 case,” it said.

The majority opinion said the ECP is required by the Constitution to take all necessary steps in order to fulfill the mandate/duty in terms of Article 222 of the Constitution.

Article 222 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 ECP under Part VIII, Chapter 1 of the Constitution.

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“Further in terms of Article 220 of the Constitution, all the executive authorities in the federation and provinces are obliged to assist the [Chief Election] Commissioner and the ECP in discharge of his or their functions, as provided for in Article 218(3) of the Constitution,” it said.

“In order to achieve the mandate of the ECP in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the ECP is required to take all available measures including utilizing 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,” the opinion added.

One judge, Justice Yahya Afridi, dissented from the majority opinion.

“For the reasons to be recorded later, with utmost respect, the opinion sought by the worthy president, in the instant reference, is not a question of law within the contemplation of Article 186 of the Constitution, accordingly, the same is returned unanswered,” said Justice Afridi in his short opinion.

AGP’s opinion

Attorney General for Pakistan (AGP) Khalid Javed Khan said the ECP is constitutionally bound to follow the opinion of the Supreme Court and implement it for the Senate election scheduled for March 3. 

“The opinion of the SC is binding and ignoring or violating order of the SC amounts to contempt and misconduct.  It is for the ECP to use technology and choose the method like barcode or serial number etc on ballot papers as secrecy has been held not to be absolute and eternal,” he added.

The AGP stated that the polls shall be by secret ballot but secrecy may end there. The ECP is 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. That has to be done by the ECP in the light of the SC opinion delivered today.

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

“If the ECP does not do this, the complainant can go to a court or a tribunal to see if the vote was actuated by corrupt practice,” he added.

However, Sindh High Court Bar Association (SHCBA) President Salahuddin Ahmed said for the time being, the ball is in the ECP’s court.

“The SC did not give any specific directions or timeline; so the ECP may well keep its discussion and implementation on introducing reforms after the elections on Wednesday,” he added.