ISLAMABAD: The Supreme Court closed the doors of any interpretation, for all times to come, by holding on Tuesday that the Senate elections were “elections under the Constitution” and, therefore, must be held on the basis of secret ballot instead of an open one.

Authored by Chief Justice of Pakistan Gulzar Ahmed, the majority opinion was clear by holding that no new meaning to Article 226 of the Constitution be legitimately given than the one that the Senate elections were “elections under the Constitution”.

The verdict came on a presidential reference which had invoked the Supreme Court’s advisory jurisdiction on a question instituted to suggest whether the Senate elections can be held through open ballot.

The opinion explained that the use of the word “elected”, which was a second form of the word “elect”, the noun of which was “election”, would bring this very election within the term “all elections under the Constitution”, as provided in Article 226 and such elections were to be held by secret ballot.

However, Justice Yahya Afridi in his dissenting note observed that the question raised in the reference by the President was vague, general, lacking the requisite clarity and precision, and thus does not qualify to be a ‘question of law’ envisaged under Article 186 of the Constitution. “This, in my view, justifies the exercise of discretion of abstention by the Supreme Court from expressing any opinion,” Justice Afridi observed. “I respectfully return the question referred in the reference unanswered to the President.”

The Supreme Court had ruled through a short order on March 1 that the Senate elections (due that month) had to be conducted through secret ballot, a requirement under the Constitution, instead of the open ballot. The government had approached the court with a plea to allow the elections through open ballot.

The majority opinion was given by the CJP, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Ijazul Ahsan.

In the detailed judgement released on Tuesday, the Supreme Court observed that Article 226 of the Constitution had its own characteristics and, when read as a whole, led to only one conclusion: the words ‘all elections under the Constitution’ were all those elections which were provided for in the Constitution, including the Senate elections.

The elections to the Senate are held under the Constitution and the procedure and machinery provision for conducting the elections were laid down in the Elections Act of 2017, the judgement said, adding that the substantive provision of the elections to the Senate was contained in the Constitution while the Elections Act, 2017, only dealt with the procedure and machinery provision.

The opinion observed that Article 222 of the Constitution empowered parliament to make laws on matters relating to corrupt practices and other offences in connection with elections, but also provides that no laws will have the effect of taking away or abridging any of the powers of the Chief Election Commissioner (CEC) or the Election Commission of Pakistan (ECP).

Thus this very provision of the Constitution itself prohibits parliament from making laws which will have the effect of taking away or abridging any of the powers of the CEC or the ECP.

Thus the CEC or the ECP has all powers vested in them to ensure that the elections are organised and conducted honestly, justly, fairly and in accordance with the law and corrupt practices are guarded against, the opinion said.

Article 220 also provides that it will be the duty of all executive authorities in the federation and in the provinces to assist the CEC and the ECP in the discharge of his or their functions, the opinion said.

As far as the secrecy of ballot is concerned, the opinion observed, the Supreme Court had already answered this question in 1967 in the Niaz Ahmad versus Azizuddin case by holding that secrecy was not absolute and that the secrecy of 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.

Furthermore, to achieve the ECP’s mandate in terms of Article 218(3), read with Article 220 and other enabling provisions of the Constitution and law, the ECP is required to take all available measures, including utilisation of technology to fulfil the solemn constitutional duty to ensure that the election is conducted honestly, justly, fairly and in accordance with the law and that corrupt practices are guarded against, the opinion observed.

Summing up his dissenting note, Justice Afridi observed that unless the jurisdictional contours of the Supreme Court’s advisory jurisdiction were settled and the legal efficacy of the opinion remains binding, the standard of determining clarity and precision in a question of law envisaged under Article 186 was required to be raised to ensure that it was free from political overtones or undertones.

Otherwise, it may expose this court to an unwitting condemnation of bias and crossing the delicate boundaries of ‘trichotomy of power’ envisaged in the Constitution, Justice Afridi said.

“We must not forget that democracy is never bereft of divide,” Justice Afridi observed, adding that the very essence of the political system was to rectify such disagreements. “But to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice — the raison d’etre’ of democracy.

“We must also remain cognisant that there will always be crucial events in the life of a nation where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse,” Justice Afridi emphasised.

In fact, the role of the courts ought not be expanded to encroach on other organs of the state, but must function within the ambit of determining questions on the basis of legality alone.

Otherwise, he cautioned, the courts can pass findings on political issues, without being politically accountable or responsible to anyone.

As a result, careful judicial treading is needed to ensure that the courts do not indulge in decision-making to rectify moral wrongs, “which in my view should best be left in the hands of the elected majority”, Justice Afridi stressed.

Published in Dawn, August 18th, 2021