As political parties remain engaged in intense campaigning for the upcoming Senate polls, the Supreme Court on Monday held, with a 4-1 majority, that polling for Senate elections is held "under the Constitution" and thus can not be done through an open ballot.
However, the court also held that the secrecy of the ballot is not "absolute" and can be diluted by practical considerations, especially those that relate to the Election Commission of Pakistan (ECP) exercising its mandate to conduct free and fair elections that are devoid of any corrupt practices.
The apex court said that it is up to the ECP to decide to which extent the voting should remain secret.
A five-member larger bench of the apex court — headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justices Mushir Alam, Umar Ata Bandial, Ijazul Ahsan and Yahya Afridi — announced the reserved opinion in Courtroom No 1 of the Supreme Court.
“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,” the opinion stated.
“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," it added.
The Supreme Court also made it clear that “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.”
The Election Commission also has to take all available measures, including "utilising 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," the Supreme Court said.
The opinion also highlighted that it is the job of Parliament, "to legislate [...] on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections."
However, it made clear that such legislation should not take away from or limit the powers of the chief election commission or the ECP.
Regarding the secrecy of the ballot, the Supreme Court referred to a past precedent in which it had held that the secrecy of the ballot is not absolute and that “the secrecy of the ballot [...] has not to be implemented in the ideal or absolute sense, but to be tempered by practical considerations necessitated by the processes of election”.
The court had reserved its opinion on the matter last week after the parties had concluded their arguments and Attorney-General Khalid Javed had issued a rebuttal.
The reference, filed by the government in the Supreme Court, had said 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 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 was not been clearly mentioned in the Constitution.
Talking to media after the SC order, Federal Minister for Information Shibli Faraz urged the ECP to make arrangements to ensure transparency in light of the directions given by the court.
The federal minister described the SC's opinion as 'historic' under which Senate elections will be held as per Article 226 of the Constitution.
He stressed on the fact that the court believes that the secrecy of the ballot is not absolute.
PML-N Spokesperson Marriyum Aurangzeb said her party was of the opinion that Senate polls should be held according to constitutional provisions and any change in this process should be brought through Parliament.
“The Supreme Court has ruled that Senate polls in 2021 will be held according to Article 226 of the Constitution,” she said.
The PML-N spokesperson said that the ECP’s role regarding transparency has yet to be determined and the detailed order will shed more light on the matter.
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.