ISLAMABAD (APP): The Supreme Court with a 4-1 majority on Monday opined that the Senate elections would be held through secret balloting under Article 226 of the Constitution.
A five-member larger bench of the apex court headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi announced the reserved opinion on the Presidential Reference regarding Senate elections. Justice Yahya Afridi disagreed with the majority opinion.
The eight-page court opinion stated that the Senate elections were held under the Constitution and the law. “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, fairly and in accordance with the 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 vs Federation of Pakistan (PLD 20123 SC 681),” it noted.
The court stated that the ECP was required by the Constitution to take all necessary steps in order to fulfill the 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, it added.
The judgment further reads, “As far as secrecy of ballot is concerned, this court has already answered this question in a judgment of a five-member bench of this court reported as Niaz Ahmed vs Azizuddin & others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that the secrecy of 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 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,” it concluded.
Justice Yahya Afridi in his dissenting note stated that for the reasons to be recorded later, with utmost respect, the opinion sought by the worthy President is not a question of law within the contemplation of Article 186 of the Constitution, accordingly the same was returned unanswered.
On December 23, 2020, the Attorney General for Pakistan had moved the Presidential Reference under Article 186 of the Constitution relating to the advisory jurisdiction of the Supreme Court. The president had sought the opinion of the apex court whether or not the condition of secret ballot under Article 226 of the Constitution applied to the Senate elections.