ISLAMABAD: The Supreme Court ruled on Monday that the forthcoming Senate elections will be held through secret ballot under Article 226 of the country’s Constitution.
A five-judge larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi pronounced the reserved opinion. Justice Afridi dissented from the majority opinion.
Read the following opinion of the apex court on the presidential reference:
“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 on which this Court has given successive judgments and the most exhaustive being Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v. Federation of Pakistan & 2 others (PLD 2012 SC 681);
(iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfill the above 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;
(iv) 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 Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution; Reference No.1 of 2020 – 8 –
(v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin & others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that “the secrecy of the 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”;
(vi) 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 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”.
Following is Justice Afridi’s dissenting note:
For the reasons to be recorded later, with utmost respect, the opinion sought by the Worthy President, Islamic Republic of Pakistan in the instant Reference, is not a question of law within the contemplation of Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, accordingly, the same is returned unanswered.
