Manend Team 
ISLAMABAD, (MANEND NEWS): As political parties remain engaged in
intense campaigning for the Senate polls, the Supreme Court of
Pakistan on Monday opined that the polling for the Senate elections
can not be held through an open ballot. According to the sources of a
private TV channel, Justice Yahya Khan Afridi has written dissent note
regarding the matter and has termed the presidential reference for
holding senate elections through open balloting as non-maintainable.
A five-member larger bench of the apex court — headed by Chief
Justice of Pakistan Justice Gulzar Ahmed and comprising Justices
Mushir Alam, Umar Ata Bandial, Ijazul Ahsan and Yahya Afridi —
announced the reserved opinion in the open court with 4-1 majority.
Chief Justice of Pakistan Justice Gulzar Ahmed while reading out the
opinion on presidential reference ruled that according to Article 218 of
the Constitution, the Election Commission of Pakistan is empowered to
take all the steps to ensure transparency in the polls.
“It is the responsibility of the Election Commission of Pakistan to end
corrupt practices from the electoral process and according to Article
218-3 ECP can utilise the latest technologies to stop corruption and
corrupt practices in senate election,” the short order stated.
The apex court further said that it is up to the ECP to decide to which
extent the voting should remain secret. The top court, however, also
said that the secrecy of the ballot papers was “not absolute”.
The court said that several decisions of Supreme Court of Pakistan are
present for stopping corruption and corrupt practices. The court in its
opinion said that according to Article 222 of the Constitution it is right
of the Parliament to make election laws. The court in its opinion said
that the no law could be made for decreasing the powers of the ECP.
The court in its opinion said that according to Article 220 of the
Constitution all executive authorities are bound to assist the Election
Commission of Pakistan.
The court in its opinion said that according to the decisions of the
Supreme Court of Pakistan the secrecy of the ballot it not absolute.
The court has cited verdicts of two cases including Workers Part and
Niaz Ahmed.
The court had reserved its opinion last week after all the parties had
concluded their arguments and after the rebuttal of Attorney General
for Pakistan Barrister Khalid Jawed Khan. Chief Justice Gulzar Ahmed
had observed that the court will give its opinion by interpreting the
provisions of the Constitution.
Talking to reporters outside the Supreme Court, PTI’s Senator Faisal
Javed Khan termed the opinion a “splendid decision” and a “victory for
Pakistan”. He said he was grateful to the court for listening to
everyone.
“The attorney general’s team worked hard and great arguments were
done. Such a detailed discussion on the Senate has not happened
before.”
He added that Prime Minister Imran Khan had made efforts to end
corruption from every level, including bringing an end to “bribery,
thievery and buying and selling” in the Senate elections.
“The honourable court said secrecy is not absolute. That means it
cannot stay [this way] till the Day of Judgment”.
Talking further on the court’s opinion, he said it had instructed the ECP
to work on matters including proportional representation and take
measures against corruption in elections.
He said that when elections are held through identifiable ballots, no
one would dare to sell their vote. “This is a splendid opinion for
transparency,” he stressed.
He said after the court’s opinion, the ECP would have to ensure three
things: identifiable ballots, proportional representation and ensuring
free and transparent elections.
Speaking separately to reporters, Minister for Information and
Broadcasting Senator Syed Shibli Faraz called on the ECP to take
“practical steps” to end corruption and secrecy in Senate elections.
He said the primary reason behind the presidential reference was to
find out what practical steps can be taken to end corruption in Senate
elections.
“Today’s decision is a very historic decision which apparently seems
[to state] that Senate elections will be held according to Article 226.
But at the same time, the honourable judges of the Supreme Court
acknowledged that technology should be used to make elections
transparent.”
The minister requested the ECP to “use technology — in the form of a
bar code or a serial number on the ballot paper — to ensure that these
[Senate] elections do not become secret as per the SC’s opinion”.
He also termed the government’s decision to file a presidential
reference as a “very important and good decision”, saying it was a
significant milestone in the PTI’s struggle.
It would ensure that members elected to the upper house of
parliament were done so on merit and their personal and business
interests did not affect their efforts for legislation, he added.
Faraz also expressed confidence that Finance Minister Hafeez Sheikh
would win the Senate election, saying “people vote for Imran Khan,
not the candidate”.
Shibli Faraz urged the ECP to make arrangements to ensure
transparency in light of the directions given by the court.
The federal minister said the SC’s judgment in Presidential reference is
historic under which the Senate elections will be held as per Article
226 of the constitution. He said the court has also ruled that the
secrecy of the ballot is not permanent.
The information minister asked the ECP to take requisite steps for
ensuring transparency in the Senate elections in the light of the
Supreme Court’s decision.
PML-N Spokesperson Marriyum Aurangzeb said, they were of the
opinion that the Senate polls should be held according to the
constitutional provisions and any change in this process should be
brought through the Parliament.
“The Supreme Court has ruled that the Senate polls in 2021 would be
held according to Article 226 of the Constitution,” she said.
The PML-N spokesperson said it is to be seen in the detailed order
about the ECP’s role regarding transparency.
She said that the PML-N has been the victim of horse-trading and
vote-theft in the past and the party wanted that the polls should be
held transparently.
The top court had reserved its decision on the matter on last
Thursday. A day prior to that, Chief Justice of Pakistan Gulzar Ahmed
had noted that the parliament is the forum that must decide the
method of voting for Senate elections, including the degree of secrecy
to be allowed.
The Supreme Court of Pakistan had sent notices to Chief Election
Commissioner (CEC) Dr. Sikandar Sultan Raja, members of the
Election Commission of Pakistan, advocate generals of four provinces
and advocate general Islamabad, Chairman Senate of Pakistan Mir
Muhammad Sadiq Sanjrani, Secretary Cabinet Division Sardar Ahmed
Nawaz Sukhera, Speaker National Assembly of Pakistan Asad Qaiser,
speakers of the provincial assemblies, counsel of EC Sajeel Shehryar
Swati, Jamiat Ulema-e-Islam Pakistan counsel Kamran Murtaza
Advocate and Attorney General for Pakistan Barrister Khalid Jawed
Khan and others for Monday on the occasion of delivering judgment on
presidential reference.
The case was heard by a five-judge larger 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.
The attorney for the Election Commission of Pakistan (ECP), Sajeel
Swati, requested the bench to announce its opinion by February 28, in
order to make relevant arrangements for the Senate elections which
are scheduled for March 3.
Attorney General of Pakistan (AGP) Barrister Khalid Jawed Khan said
the deep state always believes in secrecy and not transparency.
Hearing the case earlier this week, the CJP had remarked that it was
up to the Parliament to decide whether balloting in the Senate should
be open or secret.
“We will only respond to the questions that have been asked in
regards to the reference; the court only has to determine whether
Article 226 of the Constitution applies to the Senate elections,” Justice
Gulzar Ahmed had said.
He had stressed that every institution of the state has to perform its
work while remaining under its ambit; the Supreme Court wasn’t an
alternative for the parliament.
The federal government through Attorney General for Pakistan Khalid
Jawed Khan filed the presidential reference under Article 186 of the
Constitution, seeking opinion of the apex court as to whether the
Senate elections are held under the Constitution (Article 226) or under
the law (Election Act 2017).
The government had contended that the Senate elections are held
under the law and therefore there was no need to amend Article 226
of the Constitution.
In view of its contention, the government has already promulgated an
ordinance, allowing open ballot in the Senate elections. However, the
enforcement of the ordinance is subject to the verdict of the Supreme
Court.
Earlier, the government had tabled a constitution amendment bill in
parliament to introduce open ballot but it vain.
The judges have raised several questions during all hearings. First, the
bench focused on the legal question, which is main subject of the
presidential reference.
Suddenly, the judges raised the questions over the applicability of
Article 218 (3), stating, … it is the duty of the Election Commission of
Pakistan (ECP) to organise and conduct election and to make such
arrangements as are necessary to ensure that the election is
conducted honestly, justly, fairly and in accordance with law, and that
corrupt practices are guarded against.
Later, the apex court summoned the chief election commissioner along
with all ECP members to inform it about the election 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. He stated that secrecy of ballot was ‘absolute’. Upon that, the
chief justice expressed disappointment.
Later, ECP has asked all candidates for Senate elections to submit
their affidavit that they would not involve in corrupt practices.
The reference, filed by the government in the Supreme Court of
Pakistan, says that the president has sought the apex court’s opinion
on whether the condition of holding a 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,
speakers and deputy speakers of the Parliament and provincial
assemblies and “not to other elections, such as the election for the
members of Senate” held under the Elections Act 2017 enacted to
pursuant to Article 222 read with Entry 41 (1) of the Fourth Schedule
to the Constitution “which may be held by way of secret or open
ballot” as provided for in the Act. According to the government, the
nature of the elections and the way it is conducted has not been
clearly mentioned in the Constitution.
