March 1st, 2021 

By Ahmed Saeed 


The Supreme Court on Monday stated that the forthcoming Senate elections are held “under the Constitution” and the law, replying in its opinion to a presidential reference on whether the condition of ‘secret ballot’ could be excluded for the members of the Senate.

According to Article 226 of the Constitution, all elections except that of the Prime Minister and the Chief Ministers are to be held through secret ballot. The five-member bench’s majority opinion has shifted the focus back on how the Election Commission ‘takes 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”.

On the condition of secret ballot, the apex court opined that: “…..the court has already answered the question in a judgment of a five-member bench 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.”

According to Abid Saqi, former vice-chairman of the Pakistan Bar Council, that the secrecy of the ballot is referred to the ballot cast and not to identity of the voter. “The identity of the voter cannot be revealed under the Constitution,” Saqi said in his opinion referring to claims by government ministers that the Supreme Court opinion directs the Election Commission to use bar code or other technologies on ballot papers to trace the identity of the Senate voters.

Responding to the Supreme Court short opinion to the presidential reference, Latif Afridi, president of the Supreme Court Bar Association welcomed the apex court but said the Supreme Court should not have taken too much time over the presidential reference. “The question asked in the reference did not pertain to the law but rather to ethics,” Afridi said, adding that the only way for open ballot in Senate election was through a constitutional amendment.

The bench comprised Chief Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, and Justice Yahya Afridi.  The opinion was given by majority of four against one. The court stated that the detailed opinion will be recorded later. Justice Yayha Afridi dissented with the other members of the bench.  “With utmost respect the opinion sought being not a question of law within the contemplation of Article 186 of the Constitution is returned unanswered,” Justice Yayha Afridi wrote in his dissenting note.

Addressing reporters outside the Election Commission office in Islamabad, Science and Technology Minister Fawad Chaudhary said the Election Commission should use traceable ballots for Senate elections on March 3 as per opinion of the apex court on the use of technology to ensure free and fair elections. “The government has offered all technologies to the Election Commission to ensure traceable ballots,” he said.

However, Latif Afridi and Amjad Shah, former vice-chairman of Pakistan Bar Council, were of the opinion that printing of traceable ballots in Senate elections would require a constitutional amendment. “A traceable ballot goes against the spirit of the Constitution,” Amjad Shah said.

Kunwar Dilshad, former secretary of Election Commission, said it will be very difficult for the Election Commission to print traceable ballots in a short time.  In February, the ruling PTI government promulgated an ordinance subject to Supreme Court opinion to hold Senate elections though open ballot.

According to constitutional experts and jurists, the short opinion of the apex court has raised questions on how the Election Commission conducts the forthcoming Senate elections, hoping that the detailed opinion might have answers to some of the questions.