Senate polls cannot be held through open ballot; SC announces opinion on presidential reference

A five-member bench headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Yahya Afridi announced the verdict over the reference regarding holding of the Senate polls either through “secret ballot” or “open ballot”.

The majority verdict (4-1) of the top court stated that the Election Commission of Pakistan (ECP) is empowered to take all measures to hold free and fair elections and curb corrupt practices. Justice Afridi disagreed with the majority opinion.

The bench further observed that the secrecy of the ballot papers was "not final".

 “It is the responsibility of the Election Commission of Pakistan (ECP) to protect the election from corruption. All institutions are bound to follow the ECP," it stated adding, “The parliament can pass constitutional amendments.”

The opinion further read that the electoral body ECP can use latest technology to ensure the holding of transparent elections under Article 218 of the Constitution.

Apex court had reserved the verdict on February 25, 2021. 

Detailed verdict

“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”.

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.

Government resorts to a contentious reference

On December 23, 2020, Pakistan Tehreek-e-Insaaf (PTI) government filed a reference in Supreme Court (SC), signed by President Arif Alvi, seeking guidance of the apex court over the matter of holding senate elections by open ballot.

The reference, prepared under Article 186 of the Constitution, was filed by Attorney General of Pakistan, Khalid Javed Khan.

It was stated in the reference that open balloting will ensure transparency in senate elections and government has sought the guidance of apex court in order to amend Section 122 (6) of the Election Act, 2017 without amending the constitution.

The Election Act is subservient to the Constitution and cannot override the constitutional provisions in Article 226 that specifically requires the Senate polls to be held by secret ballot.

The Article 226 of the Constitution, that governs the procedure of Senate elections envisaged in the Section 122 (6) of the Election Act, requires the two-third majority of the parliament to be amended.

The road that lead to the decision

On January 04, 2021, the apex court issued notices to all five advocate generals, speaker National Assembly, speakers of all provincial assemblies, Chairman Senate and Election Commission of Pakistan (ECP).

On January 12, 2021, Jamiat Ulema-e-Islam (JUI) opposed holding senate elections by open ballot during hearing of presidential reference seeking guidance of the apex court over the matter senate elections. Federal government submitted a written response while Sindh government was granted one week to furnish its stand on the reference.

On January 16, 2021, Election Commission of Pakistan (ECP) opposed holding senate elections by open ballot during hearing of presidential reference seeking guidance of the apex court over the matter senate elections. The ECP had contended that the elections to the upper house of the Parliament (Senate) comes under the Constitution, hence for holding of the said election through open ballot, Article 226 of the Constitution required to be amended.

Chairman Senate Sadiq Sanjrani on January 23, 2021 supported the idea of conducting Senate elections through open-ballot while submitting response to presidential reference.