A day after the Election Commission of Pakistan (ECP) received flak from the apex court during the hearing of a presidential reference on the use of open ballots in the upcoming Senate elections, Justice Ijazul Ahsan on Wednesday told the body that the vote in Senate polls "cannot remain secret forever".

During the hearing on Tuesday, the five-judge Supreme Court bench, headed by Chief Justice Gulzar Ahmed, had asked Chief Election Commissioner (CEC) Sikander Sultan Raja to consider recommendations presented by Attorney General of Pakistan Khalid Jawed Khan and submit a response to the court.

In its response submitted to the court today, the ECP maintained that according to Article 226 of the Constitution, Senate elections could be held through secret voting only.

The ECP's counsel said that votes for the Senate elections would "always remain secret" and the votes that were cast could "not be shown to anyone".

Justice Ahsan then questioned what the term proportional representation referred to.

"[The number] of seats of political parties in the Senate should be according to the number of their seats in the provincial assemblies. The term 'free vote' is used in polls for the National Assembly [elections]. The term 'free vote' is not included in the law for the Senate elections," he observed.

"The secrecy of the vote till the Day of Judgement is neither in the law nor in court judgements," he further remarked.

"Can electronic voting be secret? Everything that is done on the internet can be traced." Justice Ahsan questioned how the ECP would ensure proportional representation in the upper house of parliament, saying that if any party got less number of seats in the Senate as compared to its seats in the provincial assemblies, then the "ECP will be responsible."

"If [any party] does not get [the number of seats] in relation to its seats in the provincial assemblies, it will be the ECP's defeat."

Apprising the court of the measures taken by the ECP to guard against the perception of corrupt practices in the upcoming Senate elections, the ECP's counsel said that it had set up a vigilance committee and an online complaint centre.

All election candidates will be required to take an oath that they would not buy or sell votes, he added.

He informed the court that more than 1,100 complaints had been received since September. "Whatever complaints the ECP receives regarding elections, action is taken on them immediately."

Justice Ahsan remarked that the ECP had "not given any answer" to the court's questions.

The ECP's lawyer replied that Senate elections were held under Article 226 of the Constitution and under the law, taking pictures of the votes was a crime.

"Votes are not identifiable through secret ballot."

Justice Ahsan then remarked that the ECP was "talking about secrecy from now till the Day of Judgement" and such a thing was not written in the law, the Constitution or court judgements.

"Those who are illiterate or ask for help to cast their votes, what happens to their secrecy?" he questioned. Electronic voting was also identifiable, he pointed out.

Justice Mushir Alam observed that the matter of secrecy was part of the Elections Act 2017 but the question was to what extent would secrecy be applicable.

Justice Ahsan said the ECP should answer what proportional representation meant and why it was needed.

The ECP lawyer argued that if "free votes were not given, it would not be an election but a selection".

To make the vote identifiable, an amendment would be required to Article 226, he added. "Vote remains secret till the Day of Judgement."

Justice Alam replied that the secrecy of the vote ended after it was cast. "The ECP can analyse the casted votes in order to end corruption."

Chief Justice Ahmed questioned what steps the ECP would take if a party got more seats in the Senate compared to its representation in the provincial assemblies. He also questioned whether the Senate elections would be illegal if proportional representation was not achieved.

"Even if the voting is secret, a party should only get seats in accordance with its representation," he observed.

"Vote-selling will result in tatters of proportional representation," Justice Ahsan remarked. "If any party gets seats [not in accordance] with its representation, the system will be destroyed," he added.

AGP's stance

The chief justice then asked the AGP to present the government's stance on proportional representation.

He said the court would also listen to PPP stalwart Senator Raza Rabbani regarding secrecy of the vote and proportional representation.

However, the court would only listen to the Pakistan Bar Council on matters related to freedom of the judiciary and supremacy of the Constitution, the chief justice said, adding that the PBC would not be heard on political matters.

AGP Khan said the ECP should ask the heads of political parties whether any seat adjustment was done.

Justice Ahsan said the body "had the power to ensure that votes were not stolen but it said [instead] that it would take action after votes had been stolen".

"How will legislation be done without proportional representation?" he asked.

The AGP said ECP would "have to wake up from sleep". Barcodes or serial numbers could be printed on ballot papers, he suggested.

The chief justice then remarked that "those who pay for votes would have a system in place which the ECP knew but was not telling us".

"How do these people who buy the vote ensure that it is cast [in their favour]?"

He observed, however, that only a few people sold their votes.

AGP Khan told the SC bench that "those who give money [for votes] are waiting lest the court announce [polls through] open ballot".

He added that secrecy of the vote was applicable only on the day of polling. "The ECP can also use the latest technology as is being done by the court." It can print specific barcodes on ballot papers, through which only the ECP would be able to identify ballots, he suggested.

A new system for buying and selling of votes has been seen in the video that came forward recently, the AGP said while referring to a leaked video that showed some parliamentarians sitting before and counting stacks of cash reportedly ahead of the Senate elections in 2018.

"Money earned from narcotics and other black means are being used to buy and sell votes," he told the court.

The chief justice observed that Senate elections were not being held for the first time. "Why has a constitutional institution been able to focus on this yet?"

"The fate of the country is in the ECP's hands, it should understand its responsibility," the chief justice said. He also asked whether the CEC had read the court's judgement in the case related to the Qaumi Watan Party to which the ECP official replied in the negative.

"If you haven't read such an important judgement, what should we talk about with you? The judgement has laid out the full process for holding elections," the CJP said.

KP advocate general Shumail Ahmad Butt said the court had already given a judgement on the matter of keeping votes secret.

"No part of the Constitution can be read separately. Action on every part of the election process is done [on an] overall basis," he argued, adding that members of the provincial assembly could not cast votes however they wanted.

Justice Umar Ata Bandial said the courts wanted to see the ECP as a "completely independent" institution.

Justice Yahya Afridi questioned why elections were needed if there was to be proportional representation.

The court adjourned the hearing of the case till tomorrow (Thursday).