ISLAMABAD: The Supreme Court of Pakistan on Monday announced its decision on the presidential reference regarding secret ballots in the upcoming Senate elections
According to the Supreme Court, the polls for the upper house will be held according to Article 226 of the Constitution and through a secret ballot.
Article 226 of the Constitution stated that: “All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.”
A five-member bench of the apex court, headed by Chief Justice Gulzar Ahmed, announced the 4-1 majority decision in Courtroom No 1 of the Supreme Court.
The other members include Justices Mushir Alam, Umar Ata Bandial, Ijazul Ahsan and Yahya Afridi.
One of the bench members, Justice Yahya Afridi, dissented with the majority opinion.
Supreme Court however in its opinion, also stated that the Election Commission of Pakistan (ECP) was empowered to take all measures to curb corrupt practices under Article 218 (3). The apex court, giving its opinion today, also said that secrecy is not absolute.
“It is the responsibility of the Election Commission to end corrupt practices from the electoral process and it can utilise the technology in this regard,” the short order stated.
This comes as the federal government through Attorney General for Pakistan Khalid Jawed Khan filed the presidential reference under Article 186 of the Constitution, seeking the opinion of the apex court as to whether the Senate elections are held under the Constitution (Article 226) or the law (Election Act 2017).
President Arif Alvi signed the Elections (Amendment) Ordinance 2021 to pave the way for Senate elections to be held via an “open and identifiable ballot.”
According to the Ordinance, a copy of which has been shared by the president on his Twitter account, changes have been brought to Sections 81, 122 and 185 of the Elections Act, 2017.
The Ordinance will come into effect “at once” and “extend to the whole of Pakistan.”
Amendment of section 81, Act XXXIII of 2017 – “In the Elections Act, 2017 (XXXIII of 2017) in section 81, in sub-section (1), for the word “an”, the expression “subject to section 122, an” shall be substituted.
Amendment of section 122, Act XXXIII of 2017 – “In the said Act, in section 122, in sub-section (6), for the full stop at the end. a colon shall be substituted and thereafter. the following two provisos shall be added: “Provided that in case the Supreme Court of Pakistan gives an opinion in Reference No 1 of 2021 filed under Article 186 of the Constitution that elections for the members of Senate do not fall within the purview of Article 226 of the Constitution, the poll for elections for members of the Senate to be held in March 2021 and thereafter shall be conducted by the Commission through the open and identifiable ballot. “Provided further that after the elections for members of Senate, if the head of the political party requests the Commission to show the ballot cast by any voting member of his party, the Commission shall show the same to the head of the political party or his nominee.”
Amendment of section 185, Act XXXIII of 2017 – “In the said Act, in section 185, for the word “an”, the expression “subject to section 122, an” shall be substituted,” the presidential ordinance added.