Daily Times
It’s not very often that the highest court in the land delivers an opinion on an extremely important matter and both sides, for and against the motion (ordinance in this case), claim victory. Yet that is precisely what has happened regarding the Supreme Court’s opinion on the issue of secret balloting in the upcoming Senate elections. While the honourable court maintained that the said election should be held in keeping with the constitution, which the opposition has taken as a blanket rejection of the government’s position demanding an open ballot, it also said that the Election Commission of Pakistan (ECP) could use latest technology to ensure transparent polling; and that secrecy of the ballot papers was “not final.”
The way the government interprets this is that technology can now be used to track votes, since it is now the only permissible way of checking corruption typical to the Senate election. Besides, Article 218 (3) empowers ECP to take all measures necessary to curb corrupt practices. Surely it follows then that since technology can now be employed to check corruption, and the only sure way of doing that is tracing votes, the SC’s view is about putting two and two together in light of the constitution to make sure that money plays no role, especially a very negative one, in the Senate elections.
It is unfortunate that the SC’s opinion, rather than putting the argument to rest once and for all, has done little if anything at all to end the government-opposition confrontation. And since this is the court’s view, not a judgment, the ECP is left in a fix. The court’s observation that secrecy is “not final” implies that the Commission would now have to incorporate innovations, like use of bar codes or other identifying features, that will make it possible to trace the votes back to the voters failing which the secrecy would indeed become final. If it adopts a rigid stance and makes excuses like shortage of time, etc, then it would be simply disregarding the SC’s observation, which carries weight even if it is not a binding ruling. The opposition’s celebration is justified to the point that the Senate elections will be carried out under Article 226 of the constitution, which means secret ballot. But now the SC’s opinion puts the ball in the ECP’s court. https://dailytimes.com.pk/729409/secrecy-is-not-final/
The Express Tribune (No open ballot!)
The much-anticipated opinion from a five-judge bench of the Supreme Court on the presidential reference regarding the mode of voting in Senate elections is out — and being interpreted differently by the government and the opposition to portray it as a success of their respective political narratives.
The government had approached the top court seeking its guidance on whether a change in the mode of voting from secret ballot to open ballot — to ensure there is no horse-trading in the election to the Upper House — will require a constitutional amendment or it can simply happen by bringing an amendment to the Elections Act, 2017. Over the course of hearing spanning around two months, the focus of the legal debate shifted to a point where the court was required to offer its advice on whether the Constitution allows an open, identifiable ballot to elect senators.
And the apex court has, by a 4-1 vote, declared that the upper house elections will be held through secret ballot in accordance with Article 226 of the Constitution, and that “it is the duty of the Election Commission of Pakistan to ensure that the election is conducted honestly, justly, fairly, and in accordance with law and that corrupt practices are guarded against” by adopting “all available measures including utilising technologies…” The court has also declared that the secrecy of the ballot papers is “not final”, quoting a legal precedence.
The majority opinion of the top court has clearly taken sides against an open ballot, much to the disappointment of the government and the delight of the opposition. But the court making it incumbent upon the ECP to utilise technology to ensure fair elections and describing the secrecy of the ballot as “not final” is where the government sees room to publicise it as a vindication of its ‘principled stand’. The government now expects the election watchdog to use technology in the form of a bar code or a serial number on the ballot paper so as to make it traceable.
The court’s opinion is, however, likely to have implications for the government which is finding it difficult not just to get all its legislators to vote in the March 3 Senate elections on the party line, but also to convince its allies in the context. Fingers crossed.https://tribune.com.pk/story/2286955/no-open-ballot
The Nation ( Secret Ballots )
After careful consideration of the arguments presented, the Supreme Court has delivered its verdict on the upcoming Senate elections. The ballot will remain secret, although the Election Commission of Pakistan can make adjustments to prevent corruption and the illegal trade of votes.
The Honourable Court’s decision has also settled the debate on the Presidential Ordinance associated with the upcoming contest, which makes the executive order redundant.
If the government now wants to pursue the matter any further, it must do so in the halls of parliament. This is probably for the best. Legislative change—especially one as significant as the decision to remove secret ballots—needs to go through elected representatives of the public.
Parliamentary oversight is also needed on amendments in the interest of stability. If political parties do not have consensus on such a crucial issue, each change of government could stand to bring changes to the structural makeup of the constitution.
The SC’s short order also clearly states that the onus to eradicate corruption from voting is on the ECP. Secrecy is not absolute, the proceedings indicated that votes can be opened up for verification if needed.
Whether it is in the general elections or contests in the parliamentary houses, the electoral watchdog must proactively try and make sure each election is conducted free and without any irregularities.
The government has immediately sought out the printing of ballot papers that are verifiable through bar code or other forms of identifiability.
There were other questions raised that all political parties must also consider. The party’s ideological trajectory and how steadfastly workers must follow the leaders are also factors for the parliament to ponder.
As ever, the SC’s timely intervention will hopefully have put the minds of all political leaders at ease. The government must now look to empower ECP where possible and take this matter forward if it still wishes to do so after this round of Senate elections are over.https://nation.com.pk/02-Mar-2021/secret-ballots
The News ( Opinion on secrecy:
A larger five-member bench of the Supreme Court of Pakistan has given its opinion on the matter of the secrecy of the ballot for senators: that the polls for the upper house of parliament should be held through secret ballot and in accordance with Article 226 of the constitution of Pakistan. At the same time, the court has asked the Election Commission of Pakistan to use any latest technology to ensure transparency, and also reminded the ECP of its responsibility to protect the election from corruption. We may consider this opinion as a reinforcement of the supremacy of parliament in such matters as the SC has reiterated that parliament can pass constitutional amendments. But declaring the secrecy of the ballot paper as ‘not final’ has lent some ambiguity to the decision.
The use of the latest technology may mean that the vote may be traceable and the ECP is able to identify who voted for whom. In that case, the entire purpose of the secret ballot becomes questionable. Both the government and the opposition are trying to use the opinion as vindication of their version of how to conduct the Senate polls. While the opposition says it is a vindication of its view that the Senate ballot needs to be held in secret as with other forms of balloting in the country, government senators and legal experts point out that the judgment has given a licence to the ECP to find methods to ensure transparency.
As far as the upcoming Senate elections are concerned, Punjab’s 11 senators have already been decided on the basis of party numbers. While the Sindh government has opposed open balloting and welcomed the SC opinion, Khyber Pakhtunkhwa and Balochistan have said it is now up to the ECP to ensure there is no unfair play in balloting and that it is possible to go back and see how ballots have been cast. For the moment at least, the ECP should stick to the constitution. After the upcoming elections, parliament may or may not pass an amendment to change the method of voting if it is supported by a two-thirds majority.
Ideally, the PTI government should not have opted for a presidential reference in this matter and that too at such a stage when the Senate elections were so close. The strategy of the ruling party has been to create more confusion rather than clarity. The method of polling is clear in the constitution and any attempt to affect change without proper legislation is not advisable. Legal opinion regarding the SC order is quite clearly divided and it will need further analysis of the decision to determine precisely what the court has ordered in terms of instructions to the ECP. It has however made it clear that the ECP is in charge of all balloting in the country. And this may make it simpler for the body to go about conducting the Senate poll this week.https://www.thenews.com.pk/print/797641-opinion-on-secrecy
Dawn (SC on Senate polls)
THE Supreme Court has declared in its short order on the reference sent by the president under Article 186 of the Constitution that “The Elections to the Senate of Pakistan are held ‘under the Constitution’ and the law”.
The president in his reference had asked for the opinion of the court “Whether the condition of ‘secret ballot’ referred to in Article 226 of the Constitution … is applicable only for the elections held ‘under’ the Constitution such as the election to the office of President of Pakistan … and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017 … which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017?”
The order issued on Monday makes it clear that the election of the Senate is to be held under the Constitution, which means it will be conducted through a secret ballot. The court order is in essence a repudiation of the government’s position, and the ordinance it promulgated through the president, that the Senate election should be held with an open ballot.
However, there is a twist. The order then proceeds to quote a 1967 judgement “where it has been held that secrecy is not absolute….” From this observation, the Supreme Court then declares that the “Election Commission is required to take all available measures including utilising technologies … to ensure that the election is ‘conducted honestly, justly, fairly … and that corrupt practices are guarded against’.” This has added an element of ambiguity to the real meaning of the order.
While the opposition is asserting its principled position has been upheld that the election must be conducted under the Constitution and if the mode of election has to be changed, it must be done through a constitutional amendment, the government is saying the order vindicates its position that secrecy is not absolute and therefore the ECP should ensure that ballots in Wednesday’s Senate elections are identifiable if required. The detailed judgement, whenever it is issued, may help clarify the matter but for now it appears that the ECP will have to interpret the order to the best of its ability and combine it with its discretion to decide how to hold the Senate election.
The entire affair has generated a controversy that the country could have done without. Parliament shoulders the responsibility of amending the Constitution if and when needed, and the courts should not be needlessly burdened with such matters. Now that the Supreme Court has clearly stated that the mode of voting in the Senate elections is under the Constitution, it would be better if the political parties brought back the issue for discussion in parliament and legislated electoral reforms, including the mode of voting for the next Senate elections.
https://www.dawn.com/news/1610264/sc-on-senate-polls
Senate elections-Court verdict -edits, Mar 2, 2021
Daily Times
It’s not very often that the highest court in the land delivers an opinion on an extremely important matter and both sides, for and against the motion (ordinance in this case), claim victory. Yet that is precisely what has happened regarding the Supreme Court’s opinion on the issue of secret balloting in the upcoming Senate elections. While the honourable court maintained that the said election should be held in keeping with the constitution, which the opposition has taken as a blanket rejection of the government’s position demanding an open ballot, it also said that the Election Commission of Pakistan (ECP) could use latest technology to ensure transparent polling; and that secrecy of the ballot papers was “not final.”
The way the government interprets this is that technology can now be used to track votes, since it is now the only permissible way of checking corruption typical to the Senate election. Besides, Article 218 (3) empowers ECP to take all measures necessary to curb corrupt practices. Surely it follows then that since technology can now be employed to check corruption, and the only sure way of doing that is tracing votes, the SC’s view is about putting two and two together in light of the constitution to make sure that money plays no role, especially a very negative one, in the Senate elections.
It is unfortunate that the SC’s opinion, rather than putting the argument to rest once and for all, has done little if anything at all to end the government-opposition confrontation. And since this is the court’s view, not a judgment, the ECP is left in a fix. The court’s observation that secrecy is “not final” implies that the Commission would now have to incorporate innovations, like use of bar codes or other identifying features, that will make it possible to trace the votes back to the voters failing which the secrecy would indeed become final. If it adopts a rigid stance and makes excuses like shortage of time, etc, then it would be simply disregarding the SC’s observation, which carries weight even if it is not a binding ruling. The opposition’s celebration is justified to the point that the Senate elections will be carried out under Article 226 of the constitution, which means secret ballot. But now the SC’s opinion puts the ball in the ECP’s court. https://dailytimes.com.pk/729409/secrecy-is-not-final/
The Express Tribune (No open ballot!)
The much-anticipated opinion from a five-judge bench of the Supreme Court on the presidential reference regarding the mode of voting in Senate elections is out — and being interpreted differently by the government and the opposition to portray it as a success of their respective political narratives.
The government had approached the top court seeking its guidance on whether a change in the mode of voting from secret ballot to open ballot — to ensure there is no horse-trading in the election to the Upper House — will require a constitutional amendment or it can simply happen by bringing an amendment to the Elections Act, 2017. Over the course of hearing spanning around two months, the focus of the legal debate shifted to a point where the court was required to offer its advice on whether the Constitution allows an open, identifiable ballot to elect senators.
And the apex court has, by a 4-1 vote, declared that the upper house elections will be held through secret ballot in accordance with Article 226 of the Constitution, and that “it is the duty of the Election Commission of Pakistan to ensure that the election is conducted honestly, justly, fairly, and in accordance with law and that corrupt practices are guarded against” by adopting “all available measures including utilising technologies…” The court has also declared that the secrecy of the ballot papers is “not final”, quoting a legal precedence.
The majority opinion of the top court has clearly taken sides against an open ballot, much to the disappointment of the government and the delight of the opposition. But the court making it incumbent upon the ECP to utilise technology to ensure fair elections and describing the secrecy of the ballot as “not final” is where the government sees room to publicise it as a vindication of its ‘principled stand’. The government now expects the election watchdog to use technology in the form of a bar code or a serial number on the ballot paper so as to make it traceable.
The court’s opinion is, however, likely to have implications for the government which is finding it difficult not just to get all its legislators to vote in the March 3 Senate elections on the party line, but also to convince its allies in the context. Fingers crossed.https://tribune.com.pk/story/2286955/no-open-ballot
The Nation ( Secret Ballots )
After careful consideration of the arguments presented, the Supreme Court has delivered its verdict on the upcoming Senate elections. The ballot will remain secret, although the Election Commission of Pakistan can make adjustments to prevent corruption and the illegal trade of votes.
The Honourable Court’s decision has also settled the debate on the Presidential Ordinance associated with the upcoming contest, which makes the executive order redundant.
If the government now wants to pursue the matter any further, it must do so in the halls of parliament. This is probably for the best. Legislative change—especially one as significant as the decision to remove secret ballots—needs to go through elected representatives of the public.
Parliamentary oversight is also needed on amendments in the interest of stability. If political parties do not have consensus on such a crucial issue, each change of government could stand to bring changes to the structural makeup of the constitution.
The SC’s short order also clearly states that the onus to eradicate corruption from voting is on the ECP. Secrecy is not absolute, the proceedings indicated that votes can be opened up for verification if needed.
Whether it is in the general elections or contests in the parliamentary houses, the electoral watchdog must proactively try and make sure each election is conducted free and without any irregularities.
The government has immediately sought out the printing of ballot papers that are verifiable through bar code or other forms of identifiability.
There were other questions raised that all political parties must also consider. The party’s ideological trajectory and how steadfastly workers must follow the leaders are also factors for the parliament to ponder.
As ever, the SC’s timely intervention will hopefully have put the minds of all political leaders at ease. The government must now look to empower ECP where possible and take this matter forward if it still wishes to do so after this round of Senate elections are over.https://nation.com.pk/02-Mar-2021/secret-ballots
The News ( Opinion on secrecy:
A larger five-member bench of the Supreme Court of Pakistan has given its opinion on the matter of the secrecy of the ballot for senators: that the polls for the upper house of parliament should be held through secret ballot and in accordance with Article 226 of the constitution of Pakistan. At the same time, the court has asked the Election Commission of Pakistan to use any latest technology to ensure transparency, and also reminded the ECP of its responsibility to protect the election from corruption. We may consider this opinion as a reinforcement of the supremacy of parliament in such matters as the SC has reiterated that parliament can pass constitutional amendments. But declaring the secrecy of the ballot paper as ‘not final’ has lent some ambiguity to the decision.
The use of the latest technology may mean that the vote may be traceable and the ECP is able to identify who voted for whom. In that case, the entire purpose of the secret ballot becomes questionable. Both the government and the opposition are trying to use the opinion as vindication of their version of how to conduct the Senate polls. While the opposition says it is a vindication of its view that the Senate ballot needs to be held in secret as with other forms of balloting in the country, government senators and legal experts point out that the judgment has given a licence to the ECP to find methods to ensure transparency.
As far as the upcoming Senate elections are concerned, Punjab’s 11 senators have already been decided on the basis of party numbers. While the Sindh government has opposed open balloting and welcomed the SC opinion, Khyber Pakhtunkhwa and Balochistan have said it is now up to the ECP to ensure there is no unfair play in balloting and that it is possible to go back and see how ballots have been cast. For the moment at least, the ECP should stick to the constitution. After the upcoming elections, parliament may or may not pass an amendment to change the method of voting if it is supported by a two-thirds majority.
Ideally, the PTI government should not have opted for a presidential reference in this matter and that too at such a stage when the Senate elections were so close. The strategy of the ruling party has been to create more confusion rather than clarity. The method of polling is clear in the constitution and any attempt to affect change without proper legislation is not advisable. Legal opinion regarding the SC order is quite clearly divided and it will need further analysis of the decision to determine precisely what the court has ordered in terms of instructions to the ECP. It has however made it clear that the ECP is in charge of all balloting in the country. And this may make it simpler for the body to go about conducting the Senate poll this week.https://www.thenews.com.pk/print/797641-opinion-on-secrecy
Dawn (SC on Senate polls)
THE Supreme Court has declared in its short order on the reference sent by the president under Article 186 of the Constitution that “The Elections to the Senate of Pakistan are held ‘under the Constitution’ and the law”.
The president in his reference had asked for the opinion of the court “Whether the condition of ‘secret ballot’ referred to in Article 226 of the Constitution … is applicable only for the elections held ‘under’ the Constitution such as the election to the office of President of Pakistan … and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017 … which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017?”
The order issued on Monday makes it clear that the election of the Senate is to be held under the Constitution, which means it will be conducted through a secret ballot. The court order is in essence a repudiation of the government’s position, and the ordinance it promulgated through the president, that the Senate election should be held with an open ballot.
However, there is a twist. The order then proceeds to quote a 1967 judgement “where it has been held that secrecy is not absolute….” From this observation, the Supreme Court then declares that the “Election Commission is required to take all available measures including utilising technologies … to ensure that the election is ‘conducted honestly, justly, fairly … and that corrupt practices are guarded against’.” This has added an element of ambiguity to the real meaning of the order.
While the opposition is asserting its principled position has been upheld that the election must be conducted under the Constitution and if the mode of election has to be changed, it must be done through a constitutional amendment, the government is saying the order vindicates its position that secrecy is not absolute and therefore the ECP should ensure that ballots in Wednesday’s Senate elections are identifiable if required. The detailed judgement, whenever it is issued, may help clarify the matter but for now it appears that the ECP will have to interpret the order to the best of its ability and combine it with its discretion to decide how to hold the Senate election.
The entire affair has generated a controversy that the country could have done without. Parliament shoulders the responsibility of amending the Constitution if and when needed, and the courts should not be needlessly burdened with such matters. Now that the Supreme Court has clearly stated that the mode of voting in the Senate elections is under the Constitution, it would be better if the political parties brought back the issue for discussion in parliament and legislated electoral reforms, including the mode of voting for the next Senate elections.
https://www.dawn.com/news/1610264/sc-on-senate-polls
Published in Pak Media comment