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.

Published in Dawn, March 2nd, 2021