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ISLAMABAD: The Supreme Court, on Monday, by majority of four against one rendered its opinion on Presidential reference that the Senate elections are held “under the Constitution” and the law.

Justice Yahya Afridi disagreed with the majority opinion and wrote; “The opinion sought by President in the Reference is not a question of law within the contemplation of Article 186 of the Constitution accordingly, the same is returned unanswered.”

The detailed opinions of the majority and Justice Yahya will be recorded later.

President Dr Arif Alvi on December 23rd, 2020 had filed the reference in the apex court under Article 186 of Constitution seeking opinion, “Whether the condition of “secret ballot” referred to in Article 226 of the Constitution is applicable only for the elections held “under” the Constitution such as the election to the office of President of Pakistan, speaker and deputy speaker of National Assembly, chairman and deputy chairman of Senate, speakers and deputy speakers of the provincial assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017.”

A five-member bench, headed by Chief Justice Gulzar Ahmed, and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Yahya Afridi, heard the reference on Senate election for almost two months.

The upcoming Senate elections shall now be held through a secret ballot as Article 226 of Constitution says; “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.”

Similarly, Section 122(6) of Election Act, 2017 states; “The poll for election of Members of the Senate shall be held by secret ballot.”

The federal government on February 6th had enacted an Ordinance to amend Section 122(6) of the Election Act.

However, it was subject to the opinion of the Supreme Court that in case it is that the Senate elections do not fall within the purview of Article 226 of Constitution then Senate elections shall be conducted through open and identifiable ballot.

The court’s opinion said; “It is the duty of the Election Commission of Pakistan 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 Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v Federation of Pakistan & 2 others (PLD 2012 SC 681).

“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, 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 Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution.

“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 the 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 tempered by practical considerations necessitated by the processes of election.

“Furthermore, 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 utilizing 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’.”

Copyright Business Recorder, 2021