Islamabad – Mudassar Chudhary:
The Supreme Court of Pakistan on Monday announced its opinion on the presidential refrence regarding secret ballots in the upcoming Senate elections and said that the polls for the upper house will be held according to Article 226 of the Constitution and through a secret ballot.
A five-member bench of the apex court, headed by Chief Justice Gulzar Ahmed, announced the 4-1 majority decision. One of the bench members, Justice Yahya Afridi, dissented with the majority opinion.
However, SC in its opinion, also stated that the Election Commission of Pakistan (ECP) was empowered to take all measures to curb corrupt practices under Article 218 (3).
The apex court, giving its opinion, also said that secrecy is not absolute.
Earlier, the chief election commissioner, appearing before the bench, had stated that secrecy is absolute. The five-judge larger bench conducted 19 hearings on the presidential reference.
The federal government through Attorney General for Pakistan Khalid Jawed Khan filed the presidential reference under Article 186 of the Constitution, seeking the opinion of the apex court as to whether the Senate elections are to be held under the Constitution (Article 226) or under the law (Election Act 2017).
Since securing an overwhelming win in the 2018 elections, the PTI government had been eager to hold Senate elections early through an open vote. While the ruling party claimed that the latter would promote transparency, the Pakistan Democratic Movement (PDM) sternly opposed and termed it an attempt by the government to prevent its lawmakers from switching loyalties.
Subsequently, the government presented a bill seeking to amend the Constitution for an open vote in the Senate elections. Though it was passed from the standing committee concerned, the National Assembly witnessed a noisy session when the government presented the 26th constitutional amendment bill in NA.
The federal government also sought the Supreme Court’s opinion on whether the Senate elections could be held through open ballot by amending the Election Act 2017 that requires simple legislation.
The judges raised several questions during the hearings. First, the bench focused on the legal question, which was the main subject of the presidential reference.
Later, the apex court summoned the chief election commissioner along with all ECP members to inform the court about the ECP’s scheme to curb corrupt practices in the country.
The CEC, while disagreeing with the majority judges observations, had stated that legislation would be required for identifiable/traceable ballot.
Later, ECP asked all candidates for Senate elections to submit their affidavit that they would not involve in corrupt practices.
Seeing the strong resistance from the opposition in the NA, President Dr Arif Alvi on February 6 signed off the Election Amendment Ordinance, 2021, under which upcoming Senate elections could be held through open balloting.
The ordinance, which amends sections 33, 86 and 122 of the Election Act 2017, was announced with immediate effect. Its enforcement was subject to the outcome of a presidential reference pending before SC.