Vote cannot be secret forever, Justice Ijazul Ahsan tells ECP during
hearing on Senate polls reference

ISLAMABAD, (MANEND NEWS): Supreme Court of Pakistan Justice
Ijazul Ahsan on Wednesday told the Election Commission of Pakistan
that the vote in Senate polls “cannot remain secret forever”.
A day after the Election Commission of Pakistan (ECP) received flak
from the apex court during the hearing of a presidential reference on
the use of open ballots in the upcoming Senate elections, Justice Ijazul
Ahsan on Wednesday told the body that the vote in Senate polls
“cannot remain secret forever”.
During the hearing on Tuesday, the five-judge Supreme Court bench,
headed by Chief Justice Gulzar Ahmed, had asked Chief Election
Commissioner (CEC) Sikander Sultan Raja to consider
recommendations presented by Attorney General of Pakistan Khalid
Jawed Khan and submit a response to the court.
In its response submitted to the court on Wednesday, the ECP
maintained that according to Article 226 of the Constitution, Senate
elections could be held through secret voting only. The ECP’s counsel
said that votes for the Senate elections would “always remain secret”
and the votes that were cast could “not be shown to anyone”.
Justice Ijazul Ahsan then questioned what the term proportional
representation referred to. “[The number] of seats of political parties
in the Senate should be according to the number of their seats in the
provincial assemblies. The term ‘free vote’ is used in polls for the
National Assembly [elections]. The term ‘free vote’ is not included in
the law for the Senate elections,” he observed.

“The secrecy of the vote till the Day of Judgment is neither in the law
nor in court judgments,” he further remarked.
“Can electronic voting be secret? Everything that is done on the
internet can be traced.” Justice Ahsan questioned how the ECP would
ensure proportional representation in the upper house of parliament,
saying that if any party got less number of seats in the Senate as
compared to its seats in the provincial assemblies, then the “ECP will
be responsible.”
“If [any party] does not get [the number of seats] in relation to its
seats in the provincial assemblies, it will be the ECP’s defeat.”
Apprising the court of the measures taken by the ECP to guard against
the perception of corrupt practices in the upcoming Senate elections,
the ECP’s counsel said that it had set up a vigilance committee and an
online complaint centre.
All election candidates will be required to take an oath that they would
not buy or sell votes, he added.
He informed the court that more than 1,100 complaints had been
received since September. “Whatever complaints the ECP receives
regarding elections, action is taken on them immediately.”
Justice Ahsan remarked that the ECP had “not given any answer” to
the court’s questions.
The ECP’s lawyer replied that Senate elections were held under Article
226 of the Constitution and under the law, taking pictures of the votes
was a crime. “Votes are not identifiable through secret ballot.”
Justice Ahsan then remarked that the ECP was “talking about secrecy
from now till the Day of Judgment” and such a thing was not written in
the law, the Constitution or court judgments.
“Those who are illiterate or ask for help to cast their votes, what
happens to their secrecy?” he questioned. Electronic voting was also
identifiable, he pointed out.
Justice Mushir Alam observed that the matter of secrecy was part of
the Elections Act 2017 but the question was to what extent would
secrecy be applicable.

Justice Ahsan said the ECP should answer what proportional
representation meant and why it was needed.
The ECP lawyer argued that if “free votes were not given, it would not
be an election but a selection”.
To make the vote identifiable, an amendment would be required to
Article 226, he added. “Vote remains secret till the Day of Judgment.”
Justice Alam replied that the secrecy of the vote ended after it was
cast. “The ECP can analyse the casted votes in order to end
Chief Justice of Pakistan Justice Guzlar Ahmed questioned what steps
the ECP would take if a party got more seats in the Senate compared
to its representation in the provincial assemblies. He also questioned
whether the Senate elections would be illegal if proportional
representation was not achieved.
“Even if the voting is secret, a party should only get seats in
accordance with its representation,” he observed.
“Vote-selling will result in tatters of proportional representation,”
Justice Ahsan remarked. “If any party gets seats [not in accordance]
with its representation, the system will be destroyed,” he added.
The chief justice then asked the Attorney General for Pakistan
Barrister Khalid Jawed Khan to present the government’s stance on
proportional representation. He said the court would also listen to PPP
stalwart Senator Mian Raza Rabbani regarding secrecy of the vote and
proportional representation.
However, the court would only listen to the Pakistan Bar Council on
matters related to freedom of the judiciary and supremacy of the
Constitution, the chief justice said, adding that the PBC would not be
heard on political matters.
AGP Khan said the ECP should ask the heads of political parties
whether any seat adjustment was done.
Justice Ahsan said the body “had the power to ensure that votes were
not stolen but it said [instead] that it would take action after votes had
been stolen”.

“How will legislation be done without proportional representation?” he
asked. The AGP said ECP would “have to wake up from sleep”.
Barcodes or serial numbers could be printed on ballot papers, he
The chief justice then remarked that “those who pay for votes would
have a system in place which the ECP knew but was not telling us”.
“How do these people who buy the vote ensure that it is cast [in their
favour]?” He observed, however, that only a few people sold their
AGP Khan told the SC bench that “those who give money [for votes]
are waiting lest the court announce [polls through] open ballot”.
He added that secrecy of the vote was applicable only on the day of
polling. “The ECP can also use the latest technology as is being done
by the court.” It can print specific barcodes on ballot papers, through
which only the ECP would be able to identify ballots, he suggested.
A new system for buying and selling of votes has been seen in the
video that came forward recently, the AGP said while referring to a
leaked video that showed some parliamentarians sitting before and
counting stacks of cash reportedly ahead of the Senate elections in
“Money earned from narcotics and other black means are being used
to buy and sell votes,” he told the court.
The chief justice observed that Senate elections were not being held
for the first time. “Why has a constitutional institution been able to
focus on this yet?”
“The fate of the country is in the ECP’s hands, it should understand its
responsibility,” the chief justice said. He also asked whether the CEC
had read the court’s judgment in the case related to the Qaumi Watan
Party to which the ECP official replied in the negative.
“If you haven’t read such an important judgment, what should we talk
about with you? The judgment has laid out the full process for holding
elections,” the CJP said.
KP Advocate General Shumail Ahmad Butt said the court had already
given a judgment on the matter of keeping votes secret.

“No part of the Constitution can be read separately. Action on every
part of the election process is done [on an] overall basis,” he argued,
adding that members of the provincial assembly could not cast votes
however they wanted.
Justice Umar Ata Bandial said the courts wanted to see the ECP as a
“completely independent” institution.
Justice Yahya Afridi questioned why elections were needed if there was
to be proportional representation.
The chief justice also asked about the presence of PML-N counsel
Barrister Zafarullah Khan. The court was informed that Barrister
Zarfarullah was ailing. “The PML-N counsel should ensure his presence
in the court tomorrow, as the case could conclude at any time,” the
chief justice said. “Whether the senate election would stand void if it
has no proportional representation,” the chief justice asked. “Definitely
the voting remains secret but the seats should remain proportionally
correct,” chief justice said. The court adjourned the hearing of the case
till today Thursday).

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