IN answering the reference asking whether Senate elections are held under the Constitution and hence by secret ballot, the Supreme Court solved a political problem for the government. This required no two-thirds majority in either house, no political consensus; was unappealable and unreview-able. That the court chose to define what secrecy means without being formally asked and whilst espousing a view contrary to the attorney general’s when answering the question itself, was all the more stunning. How we got to the court in the first place is similarly extraordinary.

In the run-up to the recent Senate elections, the PTI felt that the representatives it had put on its ticket — those promised to us all as the composite bringers of a new dawn of high morals and corruption-free governance — were actually up for sale and could not be trusted with voting in secret.

Enter the attorney general, who gave his opinion to the cabinet that Senate elections are not held under the Constitution, and hence exempt from the Article 226 secrecy requirement. Perhaps due to a reluctance to carry such a consequential misreading of the Constitution on his lone shoulders, he reportedly advised the sending of a presidential reference asking the Supreme Court if it concurred with his opinion.

After doing so, the government also attempted a constitutional amendment, just in case it turned out the Constitution says what it actually does. Next came the country’s first contingent use of emergent power in the shape of an ordinance that would kick in if the court agreed with the government.

Legal experts ridiculed the reference as an unnecessary question sent to court on the basis of clear political designs. It was believed by many that it would be returned within minutes, deemed unworthy even of notice.

The political, hypothetical and academic question deserved to be returned unanswered.

Notices were issued. The attorney general’s lengthy arguments went well beyond the referred question, and ventured into the decay of our political class.

Then, what secrecy actually means became the focus of the debate.

Several representatives of legal bodies as well as political parties sought to be heard. As brilliantly argued by the president, Sindh High Court Bar Association, Salahuddin Ahmed, this was clearly a political, hypothetical and academic question put to the court and deserved to be returned unanswered. No real question of law was before the court, it was argued, and that what was actually being sought, an open ballot, was a political or policy determination, to be settled by the legislature and not the judiciary.

When Barrister Ahmed tried to answer for the allegations of imagined corruption ready to occur as argued by the attorney general, he was asked to move on by the court, as this was not something they were concerned with: it was only the meaning of Article 226 that they were being asked their opinion on.

The majority of four judges answered the reference by denying the government’s position: Senate elections were held under the Constitution.

Then they went further, addressing the corrupt practices they had not been concerned with. They reiterated the Election Commission of Pakistan’s job description and directed it to ensure honest elections where corrupt practices were guarded against. The ECP was to do this by taking all available measures including ‘utilising technologies’.

In paragraph V of the answer, the court quoted from a 1967 decision where it was held that the secrecy of the ballot was not absolute, and that it “has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations….”

Hence, the court appeared to have solved the government’s problem. Secrecy was no longer guaranteed, even though the Constitution said so. All on the basis that this was already decided more than 50 years ago.

If you read that 1967 decision, a very different spirit emerges. In a primary unit election, the local government of the time, a presiding officer had mistakenly marked the details of the voters on the ballot paper itself, instead of on the counterfoil as required. In doing so, he had made all the ballots traceable. The question before the court was whether the voter, through no fault of his own, could be denied the fruits of an election by way of another’s ignorant mistake.

The court in deciding that secrecy would be tempered with practical considerations, was in fact siding with the voters’ larger interest in choosing as they saw fit. Also whilst deciding, the court was specifically mindful of how these were primary unit elections, specifically distinguishable from higher stages of the democratic process, where it accepted that “more stringent provisions have been enacted”.

The Supreme Court in 1967 was giving its opinion in particular on council elections affecting a few hundred voters; it was siding with the voters who were being technically deprived through no fault of their own, and was doing so whilst distinguishing the situation as one where over-scrupulousness would deny the larger cause of justice.

The court was also mindful that secrecy was being used as an excuse to disadvantage the voter: “if such a writing is to invalidate the vote, even in the absence of a specific provision in the act to that effect, a dishonest polling officer may easily defeat a candidate by arranging for the requisite number of challenges to be thrown to voters and then endorsing their ballot papers with identifying marks. The result of the election would then be at the mercy of a corrupt officer.”

Yet 50 years later, the finding was quoted again, without context, to effect an opposite outcome: to deprive the voter, in this case elected representatives, of their unfettered right to choose in secret, as stated plainly in the Constitution, on the imagined premise that a deviation from party line was the act of a corrupt voter.

The attorney general sent out a press release claiming victory, saying the government got what they wanted. The opposition focused on how the court’s answer rebuked the government’s original position. No one made the opinion controversial, which allowed for us all to experience how a presidential reference can also effectively amend the Constitution.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, March 13th, 2021