The Supreme Court ruled on Monday that the forthcoming Senate elections are to be held through secret ballot under Article 226 of the country’s Constitution. The apex court’s 4:1 decision, however, held that the Election Commission of Pakistan (ECP) is empowered to take all measures, including the use of the latest technology, to hold free and fair elections and curb corrupt practices under Article 218 of the Constitution. The bench further observed that the secrecy is not “absolute”.
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.
The court had reserved its opinion after all the lawyers had concluded their arguments. At the last hearing, Justice Gulzar Ahmed observed that Parliament only passes resolutions for transparency of the electoral process.
Attorney General Khalid Javed after completion of the arguments of the lawyers in his rejoinder argued that the scrutiny of the vote could not hurt the secrecy. “The presidential reference is not based on a political question, but it seeks an interpretation of the Article 226,” the AG argued.
“Will the Supreme Court’s opinion will be final,” Justice Yahya Afridi asked. “The government will be bound to the court’s opinion,” AG said. “A review plea could be filed over the court’s opinion,” Justice Afridi said.
“Review petition could not be filed over the reference,” the state lawyers. “The court have no relation with the politics, it will only interpret the constitution,” the chief justice said.
Why government introduced the Ordinance?
According to sources, the decision for introducing the presidential ordinance was taken after the opposition staged a demonstration in the National Assembly on Thursday and blocked the passage of the Constitution Amendment Bill, tabled by the government for holding Senate polls through the open ballot.
A five-judge larger bench of the apex court, headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi, was hearing the reference.
PTI to emerge as the winning party?
Ahmed Bilal Mehboob, President of the Pakistan Institute of Legislative Development and Transparency, opines that “if the Senate election takes place in March 2021 as scheduled, the PTI is likely to emerge as the largest party in the house, displacing the PML-N from that position”.
It is, however, important to note that the Pakistan Democratic Movement (PDM) has announced to resign from the assemblies. PPP, led by Bilawal Bhutto Zardari, is one of the parties rallying against the government. Syed Murad Shah, Chief Minister Sindh, may advise the dissolution of the assembly shortly ahead of the Senate election in March 2021 which may keep an entire province out of the election.
Mehboob writes that “in case this happens, it will be the first time that a province skips the Senate election cycle”. “Since there is no clear and explicit provision in the Constitution and the Elections Act regarding such a situation, the matter may end up in a court of law for resolution and interpretation of the Constitution,” he continued.
“This may become necessary also because fresh election of the chair and deputy chair of the Senate has to take place immediately after the March 2021 election and the absence of half the representation of a province may significantly impact the outcome of these elections,” he concluded.