President Dr Arif Alvi on Wednesday sought the opinion of the Supreme Court on holding the Senate elections through open ballot and show of hands.

A statement by the Press Information Department said that the president approved Prime Minister Imran Khan's proposal to send a reference to the apex court under Article 186 of the Constitution.

"The president has sought the opinion of the apex court on the premier's proposal to hold the elections using open ballot/show of hands," the statement said. In the reference, the president has sought the Supreme Court's opinion on amending Section 122(6) of the Election Act, 2017 without amending the Constitution, it added.

On December 15, the federal government decided to hold Senate elections in February and invoke the advisory jurisdiction of the SC on open voting for the polls.

The elections are to be held for 52 seats of the upper house because as many members of the 104-member Senate will retire on March 11.

The proposal to seek the apex court's opinion under Article 186 of the Constitution was given by Attorney General Khalid Jawed Khan.

Briefing the cabinet, he had said if Section 122(6) of the Elections Act, 2017 was amended through an ordinance before the commencement of the election schedule by the Election Commission of Pakistan (ECP), the elections to the Senate could be held through open voting instead of secret ballot.

“However, keeping in view the sensitivity of the matter and given the fact that there is sufficient time before the next election to the Senate, the government may seek ‘clarity’ on the issue by filing a reference to the SC under Article 186 of the Constitution," he had said.

“This course is not necessary but as the matter is of utmost significance and would affect the functioning of the Senate, it may be prudent to seek the opinion of the SC,” he had said.

AG Khan had said the Senate election was scheduled to be held in or about March 2021 to fill the seats as mentioned in Article 59 of the Constitution. The prime minister had made a public statement conveying the desire of his government to hold the elections by open ballot/show of hands as against secret balloting.

Read: Senate polls to be held through show of hands, says PM Imran

He said at present Section 122(6) of the Elections Act, 2017 provided for Senate elections by secret ballot. Article 226 of the Constitution provides that all elections under the Constitution other than those of prime minister and chief ministers ‘shall’ be held by secret ballot. Therefore, the AG had said, unless the Constitution was amended, the Senate election could not be held through open voting/show of hands.

However, Khan had said, contrary to this convocational understanding, there was another view which was that the Senate election was not an election under the Constitution.

“It is held in terms of the provisions of the Elections Act, 2017. The elections under the Constitution to which Article 226 refers include the election of president of Pakistan under Article 41(3) read with Second Schedule to the Constitution. Likewise, the elections of speaker and deputy speaker of the National Assembly and chairman and deputy chairman of the Senate are elections held under the Constitution,” he had said.

He had said Article 226 of the Constitution had been interpreted by different courts. The Sindh High Court (SHC) in the case of the MQM vs province of Sindh (PLD 2017 Sindh 169), following the earlier judgement of Balochistan High Court in the case of Attaullah vs government of Pakistan (PLD 2014 Balochistan 206) held that the local government elections were the polls under Article 226 of the Constitution and must be held by secret ballot.

However, subsequently on an appeal against the SHC judgement, a three-member SC bench held that local government elections could be held through secret ballot or through show of hands and the choice was left to the legislature.

“However, the determining factor would be the provisions in the applicable statute at the time of commencing of the elections schedule,” the AG had said.

He had said while the Supreme Court judgement was a short order comprising four pages, no detailed reasons were recorded in that case and the three judges who had issued the short order had retired.

Meanwhile, informed sources had told Dawn that the proposal for early Senate elections was given by Minister for Science and Technology Fawad Chaudhry. When a participant of the meeting was asked if an amendment to the law would be required for it, he had replied in the negative and said there was room in the law for it.

He had referred to Article 224 (3) of the Constitution which reads: “An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur.”

However, he had said the members elected before expiry of term of their predecessors will assume charge after March 3.